<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: March 4, 1998
OLD KENT FINANCIAL CORPORATION
(Exact name of registrant as
specified in charter)
MICHIGAN 0-12216 38-1986608
(State of Incorporation) (Commission (IRS Employer
File Number) Identification no.)
111 LYON STREET, N.W.
GRAND RAPIDS, MICHIGAN 49503
(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code: (616) 771-5000
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
This Form 8-K is filed solely for the purpose of filing exhibits
that will be incorporated by reference in the registrant's Form 10-K Annual
Report for its fiscal year ended December 31, 1996, and other future
filings.
(c) Exhibits:
NUMBER EXHIBIT
4.7 GUARANTEE AGREEMENT, DATED AS OF AUGUST 21, 1997,
BETWEEN OLD KENT AND BANKERS TRUST COMPANY.
10.5 OLD KENT EXECUTIVE RETIREMENT INCOME PLAN AND RELATED
TRUST.
10.6 AMENDMENT TO OLD KENT EXECUTIVE RETIREMENT INCOME PLAN.
10.7 OLD KENT EXECUTIVE THRIFT PLAN AND RELATED TRUST.
10.9 OLD KENT DEFERRED COMPENSATION PLAN AND RELATED TRUST.
10.15 AMENDMENT TO OLD KENT DIRECTORS' DEFERRED
COMPENSATION PLAN.
10.20 EXECUTIVE SEVERANCE AGREEMENTS. The form of
Executive Severance Agreement was previously filed
as Exhibit 10.17 to Old Kent's Form 8-K filed
March 5, 1997. Here incorporated by reference.
An updated participant schedule is attached as
Exhibit 10.20.
10.21 EXECUTIVE SEVERANCE AGREEMENTS. The form of
Executive Severance Agreement was previously filed
as Exhibit 10.18 to Old Kent's Form 8-K filed
March 5, 1997. Here incorporated by reference.
An updated participant schedule is attached as
Exhibit 10.21.
10.22 INDEMNITY AGREEMENT. The form of Indemnity
Agreement was previously filed as Exhibit 10(c) to
Old Kent's Form 10-Q Quarterly Report for the
fiscal quarter ended June 30, 1997. Here
incorporated by reference. A participant schedule
is attached as Exhibit 10.22.
21 SUBSIDIARIES OF REGISTRANT.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
OLD KENT FINANCIAL CORPORATION
By: /s/Albert T. Potas
Albert T. Potas
Senior Vice President
Dated: March 4, 1998
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EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
4.7 GUARANTEE AGREEMENT, DATED AS OF AUGUST 21, 1997, BETWEEN
OLD KENT AND BANKERS TRUST COMPANY.
10.5 OLD KENT EXECUTIVE RETIREMENT INCOME PLAN AND RELATED TRUST.
10.6 AMENDMENT TO OLD KENT EXECUTIVE RETIREMENT INCOME PLAN.
10.7 OLD KENT EXECUTIVE THRIFT PLAN AND RELATED TRUST.
10.9 OLD KENT DEFERRED COMPENSATION PLAN AND RELATED TRUST.
10.15 AMENDMENT TO OLD KENT DIRECTORS' DEFERRED COMPENSATION PLAN.
10.20 EXECUTIVE SEVERANCE AGREEMENTS. The form of Executive
Severance Agreement was previously filed as Exhibit 10.17 to
Old Kent's Form 8-K filed March 5, 1997. Here incorporated by
reference. An updated participant schedule is attached as
Exhibit 10.20.
10.21 EXECUTIVE SEVERANCE AGREEMENTS. The form of Executive
Severance Agreement was previously filed as Exhibit 10.18 to
Old Kent's Form 8-K filed March 5, 1997. Here incorporated by
reference. An updated participant schedule is attached as
Exhibit 10.21.
10.22 INDEMNITY AGREEMENT. The form of Indemnity Agreement was
previously filed as Exhibit 10(c) to Old Kent's Form 10-Q
Quarterly Report for the fiscal quarter ended June 30, 1997.
Here incorporated by reference. A participant schedule is
attached as Exhibit 10.22.
21 SUBSIDIARIES OF REGISTRANT.
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EXHIBIT 4.7
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GUARANTEE AGREEMENT
OLD KENT CAPITAL TRUST I
DATED AS OF AUGUST 21, 1997
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<PAGE>
CROSS REFERENCE TABLE<F*>
Section of Trust
Indenture Act of Section of
1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1(c)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.9
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.3
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.4
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d); 3.2(a)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7(a)
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(c)
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1(d)
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.6; 5.4(a)
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2.10; 5.4
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1(b)
[FN]
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<F*> This Cross-Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its
terms or provisions.
</FN>
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Interpretation and Definitions. . . . . . . . . . . . . . . 2
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application. . . . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities. . . . . . . . . . . . . . . 5
SECTION 2.3 Reports by Guarantee Trustee. . . . . . . . . . . . . . . . 5
SECTION 2.4 Periodic Reports to Guarantee Trustee . . . . . . . . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent. . . . . . 6
SECTION 2.6 Guarantee Event of Default; Waiver. . . . . . . . . . . . . 6
SECTION 2.7 Guarantee Event of Default; Notice. . . . . . . . . . . . . 6
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . 6
SECTION 2.9 Disclosure of Information . . . . . . . . . . . . . . . . . 6
SECTION 2.10 Guarantee Trustee May File Proofs of Claim. . . . . . . . . 7
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of Guarantee Trustee. . . . . . . . . . . 7
SECTION 3.2 Certain Rights of Guarantee Trustee . . . . . . . . . . . . 9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee . . . 10
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility. . . . . . . . . . . . . . . 11
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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PAGE
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . 13
SECTION 5.3 Obligations Not Affected. . . . . . . . . . . . . . . . . . 13
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.5 Guarantee of Payment. . . . . . . . . . . . . . . . . . . . 15
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . 15
ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions. . . . . . . . . . . . . . . . . 15
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 7
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 8.3 Compensation. . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 Successors and Assigns. . . . . . . . . . . . . . . . . . . 18
SECTION 9.2 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 19
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<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Guarantee"), dated as of August
21, 1997, is executed and delivered by Old Kent Financial Corporation, a
Michigan corporation (the "Guarantor"), and Bankers Trust Company, a New
York banking corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) of the Securities (as defined
herein) of Old Kent Capital Trust I, a Delaware statutory business trust
(the "Trust").
W I T N E S S E T H :
WHEREAS, pursuant to the Declaration (as defined herein), the
Trust issued on January 31, 1997 (i) $100,000,000 aggregate liquidation
amount of capital securities (liquidation amount $1,000 per capital
security), designated the Floating Rate Subordinated Capital Income
Securities (the "Old Capital Securities") and (ii) $3,092,784 aggregate
liquidation amount of common securities, having a liquidation amount of
$1,000 per common security, designated the Floating Rate Common Securities
(the "Common Securities");
WHEREAS, the Old Capital Securities and the Common Securities
were guaranteed by the Guarantor to the extent and on the terms and
conditions set forth in the Guarantee Agreement, dated as of January 31,
1997 (the "Old Guarantee"), from the Guarantor to Guarantee Trustee for the
benefit of Holders of the Old Capital Securities and the Common Securities;
WHEREAS, pursuant to the Registration Rights Agreement (as
defined in the Declaration), the Trust has offered to exchange up to
$100,000,000 aggregate liquidation amount of Floating Rate Subordinated
Capital Income Securities, liquidation amount $1,000 per capital security
(the "New Capital Securities" and, together with the Old Capital
Securities, the "Capital Securities"), which have been registered under
the Securities Act of 1933, as amended (the "Securities Act");
WHEREAS, pursuant to the Registration Rights Agreement (as
defined in the Declaration), the Guarantor and the Guarantee Trustee wish
to exchange the Old Guarantee for this Guarantee, which is substantially
the same as the Old Guarantee except that it has been registered under the
Securities Act and qualified under the Trust Indenture Act and does not
contain restrictions on transfer, and which is for the benefit of the
Holders of New Capital Securities, Old Capital Securities not exchanged
for New Capital Securities and the Common Securities (collectively, the
"Securities").
WHEREAS, as incentive for the Holders to retain the Capital
Securities (which the Guarantor agrees will benefit it), the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth
<PAGE>
in this Guarantee, to pay to the Holders of the Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the Guarantor
executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE 1
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION AND DEFINITIONS. In this Guarantee,
unless the context otherwise requires:
(i) capitalized terms used in this Guarantee but not defined
in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(ii) a term defined anywhere in this Guarantee has the same
meaning throughout;
(iii) all references to "the Guarantee" or "this Guarantee"
are to this Guarantee as modified, supplemented or amended from time
to time;
(iv) all references in this Guarantee to Articles and
Sections are to Articles and Sections of this Guarantee, unless
otherwise specified;
(v) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee, unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(vi) a reference to the singular includes the plural and vice
versa and a reference to the masculine includes, as applicable, the
feminine.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Business Day" has the meaning given to such term in the
Indenture.
"Corporate Trust Office" means the office of the Guarantee
Trustee at which the corporate trust business of the Guarantee Trustee
shall at any particular time, be principally administered, which office at
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<PAGE>
the date of execution of this Guarantee is located at Bankers Trust
Company, 4 Albany Street, New York, New York 10006, Attention: Corporate
Trust and Agency Group - Structured Finance Team.
"Covered Person" means any Holder or beneficial owner of
Securities.
"Debentures" means the series of junior subordinated debentures
to be issued by the Guarantor, designated the Floating Rate Junior
Subordinated Debentures due 2027 held by the Property Trustee (as defined
in the Declaration) of the Trust.
"Declaration" means the Amended and Restated Declaration of
Trust, dated as of January 31, 1997, as amended, modified or supplemented
from time to time, among the trustees of the Trust named therein, the
Guarantor, as sponsor, and the holders from time to time of undivided
beneficial ownership interests in the assets of the Trust.
"Guarantee Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Guarantee.
"Guarantee Trustee" means Bankers Trust Company, until a
successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means
each such Successor Guarantee Trustee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Securities, to the
extent not paid or made by the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid
on such Securities to the extent the Trust shall have sufficient funds
available therefor at the time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption with respect to
any Securities called for redemption by the Trust, to the extent the Trust
shall have sufficient funds available therefor at the time, and (iii) upon
a voluntary or involuntary dissolution, winding-up or termination of the
Trust (other than in connection with the distribution of Debentures to the
Holders in exchange for Securities as provided in the Declaration), the
lesser of (A) the aggregate of the liquidation amount and all accrued and
unpaid Distributions on the Securities to the date of payment and (B) the
amount of assets of the Trust remaining available for distribution to
Holders in liquidation of the Trust (in either case, the "Liquidation
Distribution"). If a Trust Enforcement Event (as defined in the
Declaration) has occurred and is continuing, the rights of holders of the
Common Securities to receive Guarantee Payments under this Guarantee are
subordinated to the rights of Holders of the Capital Securities to receive
payments hereunder.
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<PAGE>
"Holder" shall mean any holder of Securities, as registered on
the books and records of the Trust; provided, however, that, in determining
whether the Holders of the requisite percentage of Capital Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor or any other
obligor on the Capital Securities; and provided further, that in
determining whether the Holders of the requisite liquidation amount of
Capital Securities have voted on any matter provided for in this Guarantee,
then for the purpose of such determination only (and not for any other
purpose hereunder), if the Capital Securities remain in the form of one or
more Global Certificates (as defined in the Declaration), the term
"Holders" shall mean the holder of the Global Certificate acting at the
direction of the beneficial holders of the securities.
"Indemnified Person" means the Guarantee Trustee, any Affiliate
of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or
agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of January 31, 1997,
among the Guarantor (the "Company") and Bankers Trust Company, as trustee,
and any indenture supplemental thereto pursuant to which the Debentures are
to be issued to the Property Trustee (as defined in the Declaration) of the
Trust.
"Majority in Liquidation Amount of the Securities" means, except
as provided in the terms of the Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities, voting separately as a class, who are
the record holders of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or otherwise, plus accrued and unpaid Distributions to the date upon which
the voting percentages are determined) of all outstanding Securities. In
determining whether the Holders of the requisite amount of Securities have
voted, Securities which are owned by the Guarantor or any Affiliate of the
Guarantor shall be disregarded for the purpose of any such determination.
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers (as
defined in the Declaration) of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided
for in this Guarantee shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer on behalf of such Person to express
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<PAGE>
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(iii) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such condition or covenant
has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the Guarantee
Trustee, including any vice president, any assistant vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Guarantee 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 that officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section
4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION. (a) This
Guarantee is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee and shall, to the extent applicable,
be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES. (a) The Guarantor
shall provide the Guarantee Trustee with a list, in such form as the
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<PAGE>
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders"), (i) semi-annually, not later
than June 30 and December 31 of each year and current as of such date, and
(ii) at such other times as the Guarantee Trustee may request in writing,
within 30 days of receipt by the Guarantor of a written request from the
Guarantee Trustee for a List of Holders as of a date no more than 15 days
before such List of Holders is given to the Guarantee Trustee; excluding
from any such list names and addresses received by the Guarantee Trustee in
its capacity as Security Registrar (as defined in the Indenture). The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders given to it,
provided that it may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 REPORTS BY GUARANTEE TRUSTEE. Within 60 days after
May 15 of each year (commencing with the year of the first anniversary of
the issuance of the Securities), the Guarantee Trustee shall provide to the
Holders of the Securities such reports as are required by Section 313 of
the Trust Indenture Act (if any) in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee such documents, reports
and information as required by Section 314 (if any) of the Trust Indenture
Act and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Guarantee that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given
by an officer pursuant to Section 314(c)(1) shall be given in the form of
an Officers' Certificate.
SECTION 2.6 GUARANTEE EVENT OF DEFAULT; WAIVER. The Holders of
a Majority in Liquidation Amount of the Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences. Upon such waiver, any
such Guarantee Event of Default shall cease to exist, and any Guarantee
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any
right consequent thereon.
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<PAGE>
SECTION 2.7 GUARANTEE EVENT OF DEFAULT; NOTICE. (a) The
Guarantee Trustee shall, within 90 days after the occurrence of a Guarantee
Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all Guarantee Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; provided,
that the Guarantee Trustee shall be protected in withholding such notice if
and so long as a Responsible Officer of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Guarantee Event of Default unless the Guarantee Trustee shall have
received written notice thereof or a Responsible Officer of the Guarantee
Trustee charged with the administration of the Declaration shall have
obtained actual knowledge thereof.
SECTION 2.8 CONFLICTING INTERESTS. The Declaration shall be
deemed to be specifically described in this Guarantee for the purposes of
clause (i) of the first provision contained in Section 310(b) of the Trust
Indenture Act.
SECTION 2.9 DISCLOSURE OF INFORMATION. The disclosure of
information as to the names and addresses of the Holders of the Securities
in accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, shall not be deemed to
be a violation of any existing law, or any law hereafter enacted which does
not specifically refer to Section 312 of the Trust Indenture Act, nor shall
the Guarantee Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 2.10 GUARANTEE TRUSTEE MAY FILE PROOFS OF CLAIM. Upon
the occurrence of a Guarantee Event of Default, the Guarantee Trustee is
hereby authorized to (i) recover judgment, in its own name and as trustee
of an express trust, against the Guarantor for the whole amount of any
Guarantee Payments remaining unpaid and (ii) file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have
its claims and those of the Holders of the Securities allowed in any
judicial proceedings relative to the Guarantor, its creditors or its
property.
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<PAGE>
ARTICLE 3
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 POWERS AND DUTIES OF GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee Trustee on
behalf of the Trust for the benefit of the Holders of the Securities, and
the Guarantee Trustee shall not transfer this Guarantee to any Person
except a Holder of Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee in and to this Guarantee shall automatically vest in any
Successor Guarantee Trustee, and such vesting and succession of title shall
be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a
Responsible Officer of the Guarantee Trustee has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee for the
benefit of the Holders of the Securities.
(c) The Guarantee Trustee, before the occurrence of any
Guarantee Event of Default and after the curing of all Guarantee Events of
Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Guarantee, and no implied covenants
shall be read into this Guarantee against the Guarantee Trustee. In case a
Guarantee Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible Officer of
the Guarantee Trustee, the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee, and use the same degree
of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of
Default and after the curing or waiving of all such Guarantee
Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
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obligations as are specifically set forth in this Guarantee,
and no implied covenants or obligations shall be read into
this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Guarantee; but in the case of
any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less
than a Majority in Liquidation Amount of the Securities relating
to the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or exercising any
trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee or indemnity,
satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 CERTAIN RIGHTS OF GUARANTEE TRUSTEE. (a) Subject
to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and
shall be fully protected in acting or refraining from acting upon,
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
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debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties;
(ii) Any direction or act of the Guarantor contemplated
by this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) Whenever, in the administration of this Guarantee,
the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee may, in the absence of
bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall
be promptly delivered by the Guarantor;
(iv) The Guarantee Trustee shall have no duty to see to
any recording, filing or registration or any instrument (or any
rerecording, refiling or registration thereof);
(v) The Guarantee Trustee may consult with counsel,
and the advice or opinion of such counsel with respect to legal
matters 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 accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee from any court of
competent jurisdiction;
(vi) The Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Guarantee at the request or direction of any Holder, unless such
Holder shall have provided to the Guarantee Trustee such security
and indemnity, satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided, that nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of
a Guarantee Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee;
(vii) The Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any
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resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document,
but the Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit;
(viii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or
attorneys, and the Guarantee Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) Any action taken by the Guarantee Trustee or its
agents hereunder shall bind the Holders of the Securities, and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the
Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Guarantee, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its
agent's taking such action; and
(x) Whenever in the administration of this Guarantee
the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders of a Majority in
Liquidation Amount of the Securities, (B) may refrain from
enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in
conclusively relying on or acting in accordance with such
instructions.
(b) No provision of this Guarantee shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in
any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such right, power,
duty or obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE. The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee.
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ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall be at all times a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation
or Person permitted by the Securities and Exchange Commission to
act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a)(ii), 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.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
promptly resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEE.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the Successor
Guarantee Trustee by written instrument executed by the Successor Guarantee
Trustee and delivered to the Holders and the Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a Guarantee
Trustee may resign at any time by giving written notice thereof to the
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Holders. The Guarantee Trustee shall appoint a successor by requesting
from at least three Persons meeting the eligibility requirements, such
Person's expenses and charges to serve as the Guarantee Trustee, and
selecting the Person who agrees to the lowest expenses and charges. If the
instrument of acceptance by the Successor Guarantee Trustee shall not have
been delivered to the Guarantee Trustee within 30 days after the giving of
such notice of resignation, the Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for the
appointment of a Successor Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any time
by Act (within the meaning of Section 104 of the Indenture) of the Holders
of at least a Majority in Liquidation Amount of the Capital Securities,
delivered to the Guarantee Trustee.
(d) If a resigning Guarantee Trustee shall fail to appoint a
successor, or if a Guarantee Trustee shall be removed or become incapable
of acting as Guarantee Trustee, or if any vacancy shall occur in the office
of any Guarantee Trustee for any cause, the Holders of the Capital
Securities, by Act of the Holders of record of not less than 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding
delivered to such Guarantee Trustee, shall promptly appoint a successor
Guarantee Trustee. If no Successor Guarantee Trustee shall have been so
appointed by the Holders of the Capital Securities and such appointment
accepted by the Successor Guarantee Trustee, any Holder, on behalf of
himself and all other similarly situated, may petition any court of
competent jurisdiction for the appointment of a Successor Guarantee
Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation
of the Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall
pay to the Guarantee Trustee all amounts owing for fees and reimbursement
of expenses which have accrued to the date of such termination, removal or
resignation.
(g) The Guarantor shall promptly notify the Holders of the
resignation, removal or appointment of the Guarantee Trustee.
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ARTICLE 5
GUARANTEE
SECTION 5.1 GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Trust), as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Guarantor to the Holders or
by causing the Trust to pay such amounts to the Holders.
SECTION 5.2 WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of this
Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands. Notwithstanding anything to
the contrary herein, the Guarantor retains all of its rights under the
Indenture to (i) extend the interest payment period on the Debentures and
the Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extended Interest Payment Period (as defined in the
Indenture) with respect to the Distributions (as defined in the
Declaration) on the Securities, and (ii) change the maturity date of the
Debentures to the extent permitted by the Indenture.
SECTION 5.3 OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee shall be absolute and unconditional and
shall remain in full force and effect until the entire liquidation amount
of all outstanding Securities shall have been paid and such obligation
shall in no way be affected or impaired by reason of the happening from
time to time of any event, including without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:
(a) The release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied
agreement, covenant, term or condition relating to the Securities to
be performed or observed by the Trust;
(b) The extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price (as defined in the
Indenture), Liquidation Distribution or any other sums payable under
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the terms of the Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with the Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution
or other sum payable that results from the extension of any interest
payment period on the Debentures or any change to the maturity date of
the Debentures permitted by the Indenture);
(c) Any failure, omission, delay or lack of diligence on the
part of the Property Trustee or the Holders to enforce, assert or
exercise any right, privilege, power or remedy conferred on the
Property Trustee or the Holders pursuant to the terms of the
Securities, or any action on the part of the Trust granting indulgence
or extension of any kind;
(d) The voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings affecting,
the Trust or any of the assets of the Trust;
(e) Any invalidity of, or defect or deficiency in, the
Securities;
(f) The settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) Any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Guarantee Trustee or the
Holders to give notice to, or obtain consent of the Guarantor or any other
Person with respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any
obligation, or any defense of any kind or nature that the Guarantor has or
may have against any Holder shall be available hereunder to the Guarantor
against such Holder to reduce the payments to it under this Guarantee.
SECTION 5.4 RIGHTS OF HOLDERS.
(a) The Holders of a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of this Guarantee or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee.
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(b) If the Guarantee Trustee fails to enforce this Guarantee,
then any Holder of Securities may, subject to the subordination provisions
of Section 6.2, institute a legal proceeding directly against the Guarantor
to enforce the Guarantee Trustee's rights under this Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee
Trustee or any other person or entity. Notwithstanding the foregoing, if
the Guarantor has failed to make a Guarantee Payment, a Holder of
Securities may, subject to the subordination provisions of Section 6.2,
directly institute a proceeding against the Guarantor for enforcement of
the Guarantee for such payment to the Holder of the Securities of the
principal of or interest on the Debentures on or after the respective due
dates specified in the Debentures, and the amount of the payment will be
based on the Holder's pro rata share of the amount due and owing on all of
the Securities. The Guarantor hereby waives any right or remedy to require
that any action on this Guarantee be brought first against the Trust or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 GUARANTEE OF PAYMENT.
This Guarantee creates a guarantee of payment and not of
collection.
SECTION 5.6 SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Securities against the Trust in respect of any amounts paid to
such Holders by the Guarantor under this Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation of any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee, if at
the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of
the preceding sentence, the Guarantor agrees to hold such amount in trust
for the Holders and to pay over such amount to the Guarantee Trustee for
the benefit of the Holders.
SECTION 5.7 INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Securities,
and that the Guarantor shall be liable as principal and as debtor hereunder
to make Guarantee Payments pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections
5.3(a) through 5.3(g), inclusive, hereof.
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ARTICLE 6
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 LIMITATION OF TRANSACTIONS.
So long as any Securities remain outstanding, if there shall have
occurred a Guarantee Event of Default or a Trust Enforcement Event, then
the Guarantor shall not, and shall not permit any subsidiary of the
Guarantor, to (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to,
the Guarantor's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Guarantor that rank pari passu with or junior to the
Debentures or make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary of the Guarantor if
such guarantee ranks pari passu with or junior to the Debentures (other
than (A) repurchases, redemptions or other acquisitions of shares of
capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of any
one or more employees, officers, directors or consultants or in connection
with a dividend reinvestment or shareholder stock purchase plan, (B) as a
result of an exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class of series of
the Company's indebtedness for any class or series of the Company's capital
stock, (C) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (D) any
declaration of a dividend in connection with any shareholder's rights plan,
or the issuance of rights, stock or other property under any shareholder's
rights plan, or the redemption or repurchase of rights pursuant thereto or
(E) any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which the
dividend is being paid (or PARI PASSU with or junior to such stock)).
SECTION 6.2 RANKING.
This Guarantee will constitute an unsecured obligation of the
Guarantor and will rank subordinate and junior in right of payment to all
other liabilities of the Guarantor, except those liabilities of the
Guarantor made pari passu or subordinate by their express terms.
If a Trust Enforcement Event has occurred and is continuing under
the Declaration, the rights of the holders of the Common Securities to
receive Guarantee Payments hereunder shall be subordinated to the rights of
the holders of the Capital Securities to receive payment of all amounts due
and owing hereunder.
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ARTICLE 7
TERMINATION
SECTION 7.1 TERMINATION.
This Guarantee shall terminate upon (i) full payment of the
Redemption Price (as defined in the Indenture) of all Securities, (ii) upon
the distribution of the Debentures to the Holders of all the Securities or
(iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Trust. Notwithstanding the foregoing,
this Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any Holder of Securities must restore payment
of any sums paid under the Securities or under this Guarantee.
ARTICLE 8
INDEMNIFICATION
SECTION 8.1 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith in accordance
with this Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as
to any matter the Indemnified Person reasonably believes is within such
other Person's professional or expert competence and who has been selected
with reasonable care by or on behalf of the Guarantor, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
SECTION 8.2 INDEMNIFICATION.
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against any loss, liability or
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expense incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including reasonable
legal fees and expenses) of defending itself against, or investigating, any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth
in this Section 8.2 shall survive the termination of this Guarantee.
SECTION 8.3 COMPENSATION.
The Guarantor agrees to pay to the Guarantee Trustee from time to
time reasonable compensation, as mutually agreed to by the Guarantor and
the Guarantee Trustee, for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the
Securities then outstanding. Except in connection with any merger or
consolidation of the Guarantor with or into another entity or any sale,
transfer or lease of the Guarantor's assets to another entity, in each
case, to the extent permitted under the Indenture, the Guarantor may not
assign its rights or delegate its obligations under this Guarantee.
SECTION 9.2 AMENDMENTS.
Except with respect to any changes that do not adversely affect
the rights of the Holders (in which case no consent of the Holders will be
required), this Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in Liquidation Amount of the Securities.
The provisions of Section 12.2 of the Declaration with respect to meetings
of, and action by written consent of the Holders of the Securities apply to
the giving of such approval.
SECTION 9.3 NOTICES.
All notices provided for in this Guarantee shall be in writing,
duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
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(a) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address as
the Guarantee Trustee may give notice of to the Guarantor and the
Holders of the Securities):
Bankers Trust Company
4 Albany Street
New York, New York 10006
Attention: Corporate Trust Administration
Fax: (212)
(b) If given to the Guarantor, at the Guarantor's mailing
addresses set forth below (or such other address as the Guarantor may
give notice of to the Guarantee Trustee and the Holders of the
Securities):
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, MI 49503
Attn: Corporate Secretary
Fax: (616) 771-4672
(c) If given to any Holder of Securities, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no
notice was given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 BENEFIT.
This Guarantee is solely for the benefit of the Holders of the
Securities and, subject to Section 3.1(a), is not separately transferable
from the Securities.
SECTION 9.5 GOVERNING LAW.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, this Guarantee is executed as of the day and
year first above written.
OLD KENT FINANCIAL CORPORATION,
as Guarantor
By:_____________________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee
By:_____________________________________
Name:
Title:
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EXHIBIT 10.5
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OLD KENT EXECUTIVE RETIREMENT INCOME PLAN
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<PAGE>
OLD KENT
EXECUTIVE RETIREMENT INCOME PLAN
ARTICLE 1
ESTABLISHMENT OF PLAN
1.1 ESTABLISHMENT OF PLAN.
Old Kent Financial Corporation ("OKFC") hereby amends and restates the
Old Kent Executive Retirement Income Plan, a supplemental nonqualified plan
for a select group of management personnel employed by OKFC and any
subsidiary of OKFC. This plan is intended to be a plan described in
Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). This plan is a nonqualified
supplemental executive retirement program which is not subject to
limitations in the Internal Revenue Code applicable to benefits provided
through a qualified, tax-exempt employee benefit plan established under
Section 401(a) of the Internal Revenue Code of 1986, as amended ("Code").
1.2 EFFECTIVE DATE.
The "Effective Date" of this restated plan is January 1, 1989, unless
a provision of this plan specifies a different effective date. Each plan
provision applies until the effective date of an amendment of that
provision.
1.3 APPLICATION TO FORMER PARTICIPANTS.
Except to the extent it amends a provision of the plan which applies
to former Participants or expressly states that it is applicable to former
Participants, an amendment to this plan (including changes included in any
restatement of the plan) shall not apply to a former Participant. If a
former Participant returns to employment with the Employer after the
effective date of an amendment and is designated as eligible to participate
by OKFC, the Participant's rights under the plan shall be determined by the
plan provisions as amended and in effect at that time.
<PAGE>
ARTICLE 2
DEFINITIONS
2.1 DEFINED TERMS.
Defined terms are found at the following locations:
TERM LOCATION
---- --------
Administrator 2.2
Agent for Service of Process 2.3
Average Monthly Income 4.1(a)(iii)
Beneficiary 2.4
Code 1.1
Compensation 4.1(a)(iv)
Effective Date 1.2
Employee 2.5
Employer 2.6
ERISA 1.1
Normal Retirement Date 2.7
OKFC 1.1
Old Kent Retirement Income Plan 2.8
Participant 3.1
Plan Year 2.9
Spouse 2.10
Surviving Spouse 2.11
2.2 ADMINISTRATOR.
"Administrator" means Old Kent Financial Corporation.
2.3 AGENT FOR SERVICE OF PROCESS.
"Agent for Service of Process" means the Administrator or the
individual designated by the Administrator.
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2.4 BENEFICIARY.
"Beneficiary" means the individual, trust or other entity designated
by the Participant to receive any benefits payable under this plan after
the Participant's death. A Participant may designate or change a
Beneficiary by filing a signed designation with the Administrator in the
form approved by the Administrator. The Participant's Will is not
effective for this purpose.
If a designation has not been properly completed and filed with the
Administrator or is ineffective for any other reason, the Beneficiary shall
be the Participant's Surviving Spouse. If there is no effective
designation and the Participant does not have a Surviving Spouse, the
remaining benefits, if any, shall be paid to the Participant's estate.
2.5 EMPLOYEE.
"Employee" means an individual employed by the Employer who receives
compensation for personal services performed for the Employer that is
subject to withholding for federal income tax purposes.
2.6 EMPLOYER.
"Employer" means OKFC and any subsidiary of OKFC.
2.7 NORMAL RETIREMENT DATE.
"Normal Retirement Date" means the date the Participant attains age
65.
2.8 OLD KENT RETIREMENT INCOME PLAN.
"Old Kent Retirement Income Plan" means the qualified tax-exempt
defined benefit pension plan established and maintained by Old Kent
Financial Corporation under Code Section 401(a).
2.9 PLAN YEAR.
"Plan Year" means the 12-month period beginning each January 1.
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2.10 SPOUSE.
"Spouse" means the husband or wife to whom the Participant is married
on the date the benefit is scheduled to be paid, or payment is scheduled to
begin. The legal existence of the spousal relationship shall be governed
by the law of the state or other jurisdiction of domicile of the
Participant.
2.11 SURVIVING SPOUSE.
"Surviving Spouse" means the Spouse of the Participant at the time of
the Participant's death who survives the Participant. If the Participant
and Spouse die under circumstances which prevent ascertainment of the order
of their deaths, it shall be presumed for this plan that the Participant
survived the Spouse.
ARTICLE 3
PARTICIPATION
3.1 DESIGNATION AS PARTICIPANT.
Only management and highly compensated Employees shall be eligible to
participate in this plan.
OKFC shall designate the eligible Employees who shall become
Participants ("Participant") and shall specify the date of participation
for each Participant.
3.2 TERMINATION OF PARTICIPATION.
A Participant's status as a Participant shall continue until the
earlier of termination of employment or termination of the Participant's
status as a Participant by OKFC. A former Participant may resume
participation in the plan only upon redesignation as a Participant and as
of the date specified by OKFC. Transfer of employment to OKFC or a
subsidiary of OKFC shall not be treated as termination of employment and
participation in this plan shall continue unless the Participant's status
as a Participant is terminated by OKFC.
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ARTICLE 4
AMOUNT OF BENEFITS
4.1 DETERMINATION OF BENEFIT.
The amount of the benefit to which the participant is entitled is
calculated as follows:
(a) BENEFIT BEFORE OFFSET. The amount of the Participant's benefit
shall be calculated without reduction by any provision of the Code which
directly or indirectly limits benefits payable from qualified plans,
including Subsection 401(a)(17) and Section 415.
(i) PLAN FORMULA. The benefit for a Participant shall be a
monthly pension payable as a 5-Year Certain and Life Annuity in the amount
of 60% of Average Monthly Income less 50% of the Participant's Social
Security Benefit. The entire benefit calculated under the preceding
sentence shall be reduced proportionately for each year or partial year of
benefit service by which the Participant's number of completed years of
benefit service (including any fractional part of a year) at Normal
Retirement Date is less than 25 years. All elements of the formula such as
calculating the Participant's years of benefit service shall be determined
under the Old Kent Retirement Income Plan as in effect on the date the
Participant's employment terminates. Notwithstanding the preceding
sentence, the Participant's Social Security Benefit shall be determined
under the Old Kent Retirement Income Plan as in effect on December 31,
1988.
(ii) ALTERNATIVE FORMULA. For purposes of calculating the
benefit under (i), any alternative or grandfathered benefit formula which
applies as a result of a merger or acquisition by OKFC (or for some other
reason) shall not be recognized.
(iii) AVERAGE MONTHLY INCOME. "Average Monthly Income" means the
average of the Participant's Compensation for the period of time (including
years prior to participation in this plan, if applicable) with respect to
which Average Monthly Compensation is determined for the Participant in the
Old Kent Retirement Income Plan. Average Monthly Income shall be
calculated in the same manner as Average Monthly Compensation under the Old
Kent Retirement Income Plan as in effect on the date the Participant's
employment terminates.
(iv) COMPENSATION. "Compensation" means all salary or wages
paid by the Employer to an Employee in a Plan Year for personal services
performed for the Employer, including base pay, vacation pay, holiday pay,
retroactive pay increases, regular sick pay, short-term disability,
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overtime pay, shift differential, bonuses, commissions, cash contest
awards, restricted stock dividends, ATM service pay, elective deferrals
under any plan of deferred compensation that are excluded from gross income
under Code Sections 125 (cafeteria plans) and 402(a)(8) (Thrift Plus
contributions), Old Kent Executive Thrift Plan contributions, and Old Kent
Deferred Compensation Plan contributions.
Compensation does not include moving expenses; lump-sum severance
pay (other than vacation pay paid after employment terminates); restricted
stock values; imputed income from noncash awards and supplemental cash
income paid solely on account of the contributions to or benefits paid from
insurance (including imputed income from employer paid group term life
insurance), worker's compensation or unemployment compensation programs;
payment for memberships, dues, subscriptions or continuing education;
expense reimbursements; exercised stock options; or deferred compensation
actually paid after a period of deferral.
(b) NET AMOUNT OF BENEFIT. From the amount determined under (a)
above, subtract the greater of (i) the Participant's benefit payable at
Normal Retirement Date under the Old Kent Retirement Income Plan without
consideration of any alternate formula described in (a)(ii) above or
(ii) the benefit payable at Normal Retirement Date under an alternate or
grandfathered benefit formula which applies as a result of a merger or
acquisition by OKFC (or for some other reason). The normal retirement
benefit to be subtracted in the preceding sentence also shall be expressed
in the 5-Year Certain and Life form. The difference is the amount of the
Participant's benefit under this plan. In determining the amount of the
benefit, any cost-of-living adjustment applicable to the actual benefit or
distributions pursuant to a qualified domestic relations order under the
Old Kent Retirement Income Plan shall be disregarded.
4.2 DATE OF DETERMINATION.
All benefit calculations shall be made at the time the Participant's
employment terminates or, if later, such other event which causes payment
of the benefit as stated in Section 6.4.
4.3 DUPLICATION OF BENEFITS.
There shall be no duplication of benefits between this plan and the
Old Kent Retirement Income Plan. If the Old Kent Retirement Income Plan
should be amended to provide additional benefits which are substantially
the same as benefits under this plan, this plan shall abate or terminate to
that extent and the Participants shall have the additional benefits under
the Old Kent Retirement Income Plan in lieu of the corresponding benefits
provided herein.
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ARTICLE 5
VESTING
5.1 FIVE YEAR REQUIREMENT.
The benefit provided with respect to the Participant under this plan
shall become nonforfeitable in the event of termination of employment after
completion of at least five years of service which would qualify as vesting
service under the Old Kent Retirement Income Plan or attainment of age 65.
5.2 FORFEITURE FOR CAUSE.
Notwithstanding the Participant's age or length of service, if a
Participant is discharged, or resigns, for cause, any benefit provided with
respect to the Participant under this plan shall be forfeited. The
Participant shall be deemed to have been discharged or to have resigned for
cause if the Participant's employment with the Employer terminates due to
or in conjunction with the commission of any criminal act injurious to the
Employer, any act evidencing fraud or dishonesty on the part of the
Participant or any intentional damaging of the property, assets and/or
business reputation of the Employer.
The existence of cause shall be established by the Administrator. The
determination by the Administrator shall be subject to a claims procedure
substantially the same as the claims procedure available under the Old Kent
Retirement Income Plan. If the existence of cause, as defined in the
preceding paragraph, is determined by the Administrator subsequent to
termination of the Participant's employment, such termination of employment
retroactively shall be deemed to have been discharge or resignation for
cause and to result in total forfeiture of all benefits with respect to the
Participant. In such event, benefits which are being paid, if any, shall
terminate and OKFC shall be entitled to recover back from the Participant,
the Participant's Beneficiary, and/or the Participant's estate, legal
representatives, heirs and assigns the full amount of the benefits which
were paid plus interest thereon.
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ARTICLE 6
PAYMENT OF BENEFITS
6.1 EVENT OF DISTRIBUTION.
If the Participant's employment terminates for any reason, benefit
payments shall begin at the time and in the manner specified herein. A
transfer of employment to OKFC or any subsidiary of OKFC is not a
termination of employment.
6.2 FORM OF PAYMENT.
The benefit shall be paid in the applicable form specified in this
section. Each form of benefit payment shall be actuarially equivalent
to the normal form (5-Year Certain and Life) based on the actuarial
equivalence assumptions and factors applicable in the Old Kent Retire-
ment Income Plan as in effect on the date the Participant's employment
terminates. 5-Year Certain and Life means a monthly benefit payable
for a minimum period of 60 months and for life thereafter.
(a) UNMARRIED PARTICIPANT: 10-YEAR CERTAIN AND LIFE. If the
Participant is not married at the time benefit payments are scheduled to
begin, the benefit shall be paid in an actuarially equivalent monthly
amount to the Participant for a minimum period of 120 months and for life
thereafter. In the event of death of the Participant prior to payment of
120 monthly benefit payments, the same monthly amount shall be paid to the
Participant's Beneficiary until a total of 120 monthly payments have been
made.
(b) MARRIED PARTICIPANT: JOINT AND 100% SPOUSE ANNUITY. If the
Participant is married at the time benefit payments are scheduled to begin,
the benefit shall be paid in an actuarially equivalent monthly amount to
the Participant for the Participant's lifetime and shall continue in the
same monthly amount to the Participant's Surviving Spouse, if any, for the
remainder of the Surviving Spouse's life after the Participant's death.
(c) DEATH OF PARTICIPANT BEFORE PAYMENTS BEGIN. If the Participant
is married and dies before benefit payments are required to begin (whether
or not employed by the Employer at time of death), the Surviving Spouse's
portion of the Joint and 100% Spouse Annuity (based on the Participant's
benefit as of the date of death or earlier termination of employment) shall
be payable to the Surviving Spouse. No benefits shall be payable in the
event that the Participant does not have a Surviving Spouse at the date of
the Participant's death.
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(d) LUMP SUM ELECTION. If the Participant irrevocably elects a
lump-sum payment at the time of initial participation in this plan, the
Participant's benefit shall be distributed in a single payment. The amount
of the lump sum shall be the actuarially equivalent present value of the
Participant's benefit payable at Normal Retirement Date. The lump sum
benefit shall be determined in the same manner as under the Old Kent
Retirement Income Plan in effect on the date the Participant's employment
terminates. The election of a lump-sum payment shall be void if the
Participant dies before the first day of the first month following the date
the Participant's employment terminates. If the Participant fails to make
the election at the time of initial participation, the Participant's
benefit shall be paid as specified in (a), (b), (c) or (e).
(e) $3,500 OR LESS. If the actuarially equivalent present value of
the benefit payable under (a), (b) or (c) does not exceed $3,500, the
Participant or Surviving Spouse shall be paid a lump sum. The amount of
the lump sum shall be determined in the same manner as (d) above.
6.3 MANNER OF PAYMENT.
Benefit payments shall be paid directly by the Employer or indirectly
through a grantor trust (owned or maintained by the Employer) to the
Participant or the Participant's Beneficiary. If a trust is established,
the Employer shall not be relieved of its obligation and liability to pay
the benefits of this plan except to the extent payments are actually made
from the trust.
6.4 TIME OF PAYMENT.
The payment of benefits under this plan (including the Surviving
Spouse benefit described in Section 6.2(c)) shall begin on the first day of
the first month following the date the Participant's employment terminates
for any reason or, if later, the date the Participant attains (or would
have attained) age 55. Notwithstanding the preceding sentence, the lump-
sum benefit payable under Section 6.2(d) or (3) shall be paid on March 1
following the end of the calendar year in which the Participant's
employment terminates.
If the payment of benefits commences before or after the Normal
Retirement Date, the normal retirement benefit shall be adjusted for early
or late payment in the same manner as under the Old Kent Retirement Income
Plan as in effect on the date the Participant's employment terminates.
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6.5 DEATH.
(a) PAYMENT TO SPOUSE. If a benefit is payable as a Joint and 100%
Spouse Annuity and the married Participant dies, payment shall continue to
the Participant's Surviving Spouse. No further benefits shall be payable
following death of the Participant with no Surviving Spouse.
(b) PAYMENT TO BENEFICIARY. If a benefit is payable as a 10-Year
Certain and Life annuity and the unmarried Participant dies prior to
payment of all amounts due under this plan, payment of all remaining
benefits shall be made to the Participant's Beneficiary.
(c) PAYMENT TO ESTATE. If payment is to be made to the estate of a
Participant, payment shall be made in a lump sum 90 days after the date of
the Participant's death.
(d) GENERATION-SKIPPING TRANSFER TAX. Notwithstanding any other
provision in this plan or any related trust agreement, OKFC may withhold or
direct the trustee to withhold any benefits payable to a Beneficiary as a
result of the death of a Participant or any other Beneficiary until it can
be determined whether a generation-skipping transfer tax, as defined in
Chapter 13 of the Code, or any substitute provision therefor, is payable by
OKFC or the trustee and the amount of generation-skipping transfer tax,
including interest, that is due. If such tax is payable, the benefits
otherwise payable hereunder shall be reduced by an amount equal to the
generation-skipping transfer tax and interest. Any benefits withheld shall
be payable as soon as there is a final determination of the applicable
generation-skipping transfer tax and interest. No interest shall be
payable to any Beneficiary for the period from the date of death to the
time when the amount of benefits payable to a Beneficiary can be fully
determined pursuant to this paragraph.
ARTICLE 7
GENERAL PROVISIONS
7.1 AMENDMENT; TERMINATION.
Old Kent Financial Corporation reserves the right to amend this plan
prospectively or retroactively, or to terminate this plan, provided that an
amendment or termination may not reduce or revoke the accrued benefits of
Participants as of the end of the Plan Year preceding the Plan Year in
which the amendment or termination is adopted.
Upon termination of this plan, the accrued benefits of affected
Participants shall become nonforfeitable. Each Participant's vested
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accrued benefits shall be distributed in accordance with the provisions of
this plan.
7.2 EMPLOYMENT RELATIONSHIP.
Nothing in this plan shall be construed as creating a contract of
employment between the Employer and any Participant or otherwise conferring
upon any Participant or other person a legal right to continuation of
employment or any rights other than those specified herein. This plan
shall not limit or affect the right of the Employer to discharge or retire
a Participant.
7.3 RIGHTS NOT ASSIGNABLE.
Except for designation of a Beneficiary, amounts promised hereunder
shall not be subject to assignment, conveyance, transfer, anticipation,
pledge, alienation, sale, encumbrance, or charge, whether voluntary or
involuntary, by the Participant or any Beneficiary of the Participant, even
if directed under a qualified domestic relations order or other divorce
order. An interest in an amount promised shall not provide collateral or
security for a debt of a Participant or Beneficiary or be subject to
garnishment, execution, assignment, levy, or to another form of judicial or
administrative process or to the claim of a creditor of a Participant or
Beneficiary, through legal process or otherwise. An attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise
dispose of benefits payable, before actual receipt of the benefits, or a
right to receive benefits, shall be void and shall not be recognized.
7.4 UNSECURED CREDITOR STATUS.
A Participant shall be an unsecured general creditor of the Employer
as to the payment of any benefit under this plan. The right of any
Participant or Beneficiary to be paid the amount promised in this plan
shall be no greater than the right of any other general, unsecured creditor
of the Employer.
7.5 NO TRUST OR FIDUCIARY RELATIONSHIP.
Nothing contained in this plan shall be deemed to create a trust or
fiduciary relationship of any kind for the benefit of any Participant or
Beneficiary.
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7.6 CONSTRUCTION.
The singular includes the plural, and the plural includes the
singular, unless the context clearly indicates the contrary. Capitalized
terms (except those at the beginning of a sentence or part of a heading)
have the meaning specified in this plan. If a capitalized term is not
defined in this plan, the term shall have, for purposes of this plan, the
stated definitions of those terms in the Old Kent Retirement Income Plan as
amended from time to time.
7.7 UNFUNDED PLAN.
This shall be an unfunded plan within the meaning of ERISA. Benefits
provided herein constitute only an unsecured contractual promise to pay in
accordance with the terms of this plan by the Employer.
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TRUST AGREEMENT FOR
OLD KENT FINANCIAL CORPORATION
EXECUTIVE RETIREMENT INCOME TRUST
This Trust Agreement is made this 15th day of February, 1991,
between OLD KENT FINANCIAL CORPORATION, a Michigan corporation ("OKFC") ,
and OLD KENT BANK AND TRUST COMPANY (the "Trustee").
OKFC hereby establishes the trust to hold all money and other
property, together with the income thereon, paid or transferred to the
trust under this Trust Agreement. The Trustee accepts the trust and agrees
to hold in trust all money and other property transferred to it hereunder
for the uses and purposes set forth herein, and the Trustee agrees to
discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
INTRODUCTION
OKFC has adopted the Old Kent Executive Retirement Income Plan
(the "Plan") for the benefit of selected management and highly compensated
employees.
The purpose of this trust is to give Plan participants greater
security by placing assets in trust to pay benefits under the Plan, unless
OKFC or a subsidiary of OKFC that employs one or more participants in the
Plan becomes insolvent, in which case the assets will be used to pay
creditors of the insolvent corporation. OKFC shall be liable to
participants to make all payments required under the Plan to the extent
that such payments are not made from this trust. Distributions made from
this trust to participants or their beneficiaries shall, to the extent of
such distributions, satisfy OKFC's obligations to pay benefits under the
Plan.
OKFC and the Trustee agree that the trust has been established to
pay obligations of OKFC pursuant to the Plan and, upon insolvency, is
subject to the rights of general creditors of OKFC. The trust is intended
to be a grantor trust under the provisions of Sections 671 through 677 of
the Internal Revenue Code of 1986 as amended (the "Code") . OKFC agrees to
report all items of income and deduction of the trust on its income tax
returns. OKFC shall have no right to any distributions from the trust or
any claim against the trust for funds necessary to pay any income taxes
that OKFC is required to pay. No contribution to or income of the trust is
intended to be taxable to Plan participants until benefits are distributed
to them.
The Plan is intended to be "unfunded" as described in Parts 2
through 4 of Subtitle B of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") and maintained primarily for the
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purpose of providing deferred compensation for a select group of management
and highly compensated employees.
ARTICLE I
Effective Date; Duration
1.1 Effective Date and Trust Year.
This trust shall become effective when the Trust Agreement has
been executed by OKFC and the Trustee, and OKFC has made a contribution to
the trust. The trust year shall coincide with OKFC's fiscal year. OKFC
shall report any change in its fiscal year to the Trustee.
1.2 Duration.
(a) This trust shall continue in effect until all assets of the
trust fund are exhausted through distribution of benefits to participants,
payment to general creditors in the event of insolvency, payment of fees
and expenses of the Trustee, and return of remaining funds to OKFC pursuant
to Section 1.3.
(b) The Trustee may make payments before they would otherwise be
due if, based on a change in the federal tax or revenue laws, a published
ruling, or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court
of competent jurisdiction involving a participant or a beneficiary, or a
closing agreement made under Section 7121 of the Code that is approved by
the Internal Revenue Service and involves a participant, it is determined
that a participant has or will recognize income for federal income tax pur-
poses with respect to amounts that are or will be payable under the Plan
before they are to be paid.
1.3 Irrevocability.
This trust shall become irrevocable upon the issuance by the
Internal Revenue Service of a private letter ruling establishing that it is
unfunded for purposes of the Code. If such a ruling is denied, OKFC may
revoke the trust and take possession of all assets held by the Trustee for
the trust. This trust also shall become irrevocable if such a ruling is
not requested by OKFC within 90 days after the date of establishing this
trust.
Except as provided in Sections 1.2 and 2.3 the trust shall be
irrevocable with respect to amounts contributed to it, including income
attributable to such contributions, until all benefit rights under the Plan
for participants who are covered by this trust are satisfied. The Trustee
shall then return to OKFC any assets remaining in the trust.
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ARTICLE II
Trust Fund and Funding Policy
2.1 Contributions.
(a) OKFC may contribute to the trust such amounts as shall be
reasonably necessary to provide for all benefits payable under the Plan to
participants covered by this trust. The time of payment of contributions
shall be decided by OKFC. Contributions may be in cash or in kind.
(b) The Trustee shall accept the contributions made by OKFC and
shall hold them as a trust fund for the payment of benefits under the Plan.
The Trustee shall not be responsible for the adequacy of the trust fund to
meet and discharge liabilities under the Plan.
2.2 Investments.
The Trustee shall invest and reinvest the assets of the trust as
the Trustee, in its sole discretion, may deem appropriate, including,
without limitation, improved and unimproved real property (whether or not
income producing); common and preferred stocks; shares or certificates of
participation issued by investment companies; investment trusts and mutual
funds; common or pooled investment funds; bonds; debentures; mortgages;
deeds of trust; insurance and annuity contracts; notes secured by real or
personal property; leases; ground leases; limited partnership interests;
real or personal property interests owned, developed or managed by joint
ventures or limited partnerships; obligations of governmental bodies, both
domestic and foreign; notes, commercial paper, certificates of deposit, and
other securities or evidences of indebtedness, secured or unsecured,
including variable amount notes, convertible securities of all types and
kinds, interest-bearing savings or deposit accounts with any federally
insured bank (including the Trustee) or any federally insured savings and
loan association; and any other property permitted as trust investments
under applicable law. The Trustee is authorized to invest in any common or
pooled investment fund or mutual fund now or hereafter maintained by the
Trustee and any interest-bearing savings or deposit accounts with the
banking department of the Trustee.
2.3 Return of Excess Assets.
(a) In the event the trust shall hold Excess Assets, OKFC, at
its option, may direct the Trustee to return part or all of such Excess
Assets to OKFC.
(b) "Excess Assets" are assets of the trust exceeding one
hundred fifteen percent (115%) of the present value of all benefits payable
under the Plan to participants who are covered under this trust. The
present value of all benefits payable under the Plan shall be determined in
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accordance with the terms of the Plan and the actuarial assumptions and
methodology used to determine the Accumulated Benefit Obligation under the
Statement of Financial Accounting Standard Number 87 issued by the
Financial Accounting Standards Board.
(c) Notwithstanding any limitations contained in this Trust
Agreement, income of the trust may be distributed to OKFC and immediately
recontributed by OKFC to the trust if OKFC advises the Trustee that such
distribution and recontribution is necessary for federal income tax
purposes to enable OKFC to obtain a deduction for benefit payments to
participants made from income of the trust. OKFC agrees to recontribute to
the trust any amounts distributed pursuant to this paragraph immediately
following any such distribution. In the event OKFC fails to recontribute
any such amount immediately upon receipt thereof, the Trustee shall not be
obligated to make any further distributions pursuant to this paragraph.
For administrative convenience, the Committee desires to have the Trustee
retain such income distributions in the trust fund as additional
contributions by OKFC, without first making payment to OKFC and then
receiving payment from OKFC, unless it instructs the Trustee otherwise. In
such event the Trustee shall treat the income of the trust fund for each
quarter of the trust year as an additional contribution to the trust by
OKFC for such quarter.
2.4 Accounts.
(a) The Trustee shall establish a separate account for each Plan
participant who is covered by this trust, to which it shall credit
contributions for that participant. The account shall be a bookkeeping
account only, shall reflect an undivided interest in assets of the trust
fund and shall not require any segregation of particular assets. OKFC
shall direct the Trustee with respect to the allocation of assets of the
trust fund among the separate accounts. With respect to any new
contributions to the trust by OKFC after separate accounts have been
established, OKFC shall designate each Plan participant for whom such
contributions are made. If the Trustee does not receive a valid direction
with respect to the allocation of assets of the trust fund among separate
accounts or does not receive a valid direction with respect to the
participants for whom new contributions are made within a reasonable time
after such accounts are established or such contributions are received, the
unallocated assets shall be allocated and new contributions shall be
credited in proportion to the accrued benefits of the participants entitled
thereto. The Trustee shall have no duty to inquire whether any of the
foregoing allocations of assets of the trust fund or contributions to the
trust are made in compliance with the terms of the Plan. After separate
accounts are established, assets allocated to an account for one Plan
participant may not be utilized to provide benefits for any other
participants until all benefits for such participant have been paid in
full.
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(b) The Trustee shall allocate investment earnings and losses of
the trust fund among the accounts in proportion to their balances, except
that changes in the value of insurance and annuity contracts shall be
allocated to the account or accounts for which they are held. Payments to
general creditors during Insolvency Administration under Section 5.2 shall
be charged against the accounts in proportion to their balances, except
that payment of benefits to a Plan participant as a general creditor shall
be charged against the account for that participant.
(c) OKFC and the Trustee may agree that the accounts under this
Section 2.4 shall be maintained by the Plan Administrator, or such other
person as may be designated by the Plan Administrator, rather than the
Trustee.
2.5 Substitution of Other Property.
(a) In the event that any contributions to the trust are made in
kind as provided in Section 2.1(a), OKFC shall have the power to reacquire
part or all of the trust fund consisting of such contributions at any time,
by substituting other readily marketable property of equivalent value, net
of any costs of disposition. Such power is exercisable in a non-fiduciary
capacity and may be exercised without the approval or consent of
participants or any other person.
(b) The value of all assets in the trust fund shall be fair
market value. Values shall be determined by the Trustee and may be based
on the determination of Experts, as described in Section 2.6(b).
2.6 Administrative Powers of Trustee.
(a) Subject in all respects to applicable provisions of this
Trust Agreement and the Plan, including limitations on investment of the
trust fund, the Trustee shall have the rights, powers and privileges of an
absolute owner when dealing with property of the trust, including, without
limitation, the powers listed below:
(1) To sell, convey, transfer, exchange, partition, lease,
and otherwise dispose of any of the assets of the trust at any time held by
the Trustee under this Trust Agreement;
(2) To exercise any option, conversion privilege or
subscription right given the Trustee as the owner of any security held in
the trust; to vote any corporate stock either in person or by proxy, with
or without power of substitution; to consent to or oppose any
reorganization, consolidation, merger, readjustment of financial structure,
sale, lease or other disposition of the assets of any corporation or other
organization, the securities of which may be an asset of the trust; and to
take any action in connection therewith and receive and retain any
securities resulting therefrom;
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(3) To deposit any security with any protective or
reorganization committee, and to delegate to such committee such power and
authority with respect thereto as the Trustee may deem proper, and to agree
to pay out of the trust such portion of the expenses and compensation of
such committee as the Trustee, in its discretion, shall deem appropriate;
(4) To cause any property of the trust to be issued, held
or registered in the name of the Trustee as trustee, or in the name of one
or more of its nominees, or one or more nominees of any system for the
central handling of securities, or in such form that title will pass by
delivery, provided that the records of the Trustee shall in all events
indicate the true ownership of such property;
(5) To renew or extend the time of payment of any
obligation due or to become due;
(6) To commence or defend lawsuits or legal or adminis-
trative proceedings; to compromise, arbitrate or settle claims, debts or
damages in favor of or against the trust; to deliver or accept, in either
total or partial satisfaction of any indebtedness or other obligation, any
property; to continue to hold for such period of time as the Trustee may
deem appropriate any property so received; and to pay all costs and
reasonable attorney fees in connection therewith out of the assets of the
trust;
(7) To grant options to purchase or to acquire options to
purchase any real property;
(8) To foreclose any obligation by judicial proceeding or
otherwise;
(9) To manage any real property in the trust in the same
manner as if the Trustee were the absolute owner thereof, including the
power to lease the same for such term or terms within or beyond the
existence of the trust and upon such conditions, including (but not by way
of limitation) agreements for the purchase or disposal of buildings thereon
and options to the tenant to renew such lease from time to time, or to
purchase such property, as the Trustee may deem proper;
(10) To borrow money from any person in such amounts, upon
such terms and for such purposes as the Trustee, in its discretion, may
deem appropriate; and in connection therewith, to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust assets
as security; and to lend money on a secured or unsecured basis to any
person other than a party in interest;
(11) To appoint one or more persons or entities as agents or
custodians to act as ancillary trustees or sub-trustees for the purpose of
investing in and holding title to real or personal property or any interest
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therein located outside the State of Michigan; provided that any such
ancillary trustee or sub-trustee shall act with. such power, authority,
discretion, duties, and functions of the Trustee as shall be specified in
the instrument establishing such ancillary or sub-trust, including without
limitation, the power to receive, hold and manage property, real or
personal, or undivided interests therein; and the Trustee may pay the
reasonable expenses and compensation of such ancillary trustees or sub-trustees
out of the trust;
(12) To deposit any securities held in the trust with a
securities depository;
(13) To retain in money market funds or other daily
interest, daily availability funds and investment cash so much of the trust
assets as the Trustee deems advisable;
(14) To determine how all receipts and disbursements shall
be credited, charged or apportioned as between income and principal, and
the decision of the Trustee shall be final and not subject to question by
any participant or beneficiary of the trust; and
(15) Generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the
orderly administration or protection of the trust fund.
Notwithstanding the foregoing or any other language in this
Trust Agreement, the Trustee shall not have the power to start, enter into,
or otherwise engage in any business enterprise, or continue to operate any
business interest that becomes part of the trust estate, if such activity
constitutes "carrying on business" as referred to in Section 301.7701-2 of
the Procedure and Administration Regulations under the Internal Revenue
Code of 1986, as amended.
(b) The Trustee may engage one or more independent attorneys,
accountants, actuaries, appraisers or other experts (an "Expert") for any
purpose, including the determination of Excess Assets pursuant to Section
2.3 or disputed claims pursuant to Section 3.3. The determination of an
Expert shall be final and binding on OKFC, the Trustee, and all of the
participants unless within 30 days after receiving a determination deemed
by any participant to be adverse, the participant initiates suit in a court
of competent jurisdiction seeking appropriate relief. The Trustee shall
have no duty to oversee or independently evaluate the determination of the
Expert. The Trustee shall be authorized to pay the fees and expenses of
any Expert out of the assets of the trust fund.
(c) OKFC shall from time to time pay taxes (including interest
and applicable penalties) of any and all kinds whatsoever that at any time
are lawfully levied or assessed upon or become payable in respect of the
trust fund, the income or any property forming a part thereof, or any
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<PAGE>
security transaction pertaining thereto. To the extent that any taxes
levied or assessed upon the trust fund are not paid by OKFC or contested by
OKFC pursuant to the last sentence of this paragraph, the Trustee shall pay
such taxes out of the trust fund, and OKFC may, in its discretion, deposit
into the trust fund an amount equal to the amount paid from the trust fund
to satisfy such tax liability. If requested by OKFC, the Trustee shall, at
OKFC's expense, contest the validity of such taxes in any manner deemed
appropriate by OKFC or its counsel, but only if it has received an
indemnity bond or other security satisfactory to it to pay any expenses of
such contest. Alternatively, OKFC may itself contest the validity of any
such taxes.
ARTICLE III
Administration
3.1 Company Representatives.
(a) OKFC is the Plan Administrator for the Plan and has general
responsibility to interpret the Plan and determine the rights of
participants and beneficiaries.
(b) The Trustee shall be given the names and specimen signatures
of OKFC representatives authorized to take action with regard to the
administration of the Plan and this trust. The Trustee shall accept and
rely upon the names and signatures until notified of any change.
Instructions to the Trustee shall be signed for OKFC by any such
representatives as OKFC may designate.
3.2 Payment of Benefits.
(a) The Trustee shall pay benefits to participants and bene-
ficiaries on behalf of OKFC in satisfaction of OKFC's obligations under the
Plan or shall reimburse OKFC for payments made directly by OKFC in
satisfaction of its obligations under the Plan. Benefit payments from an
account, or reimbursements therefor, shall be made until the assets of the
account are exhausted. OKFC's obligation shall not be limited to the trust
fund, and a participant shall have a claim against OKFC for any payment not
made by the Trustee.
(b) The Trustee shall make payments in accordance with written
directions from OKFC. To the extent that the Trustee makes payments to
participants and beneficiaries as directed by OKFC, the Trustee shall make
any required income tax withholding and shall pay amounts withheld to
taxing authorities on OKFC's behalf or determine that such amounts have
been paid by OKFC.
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<PAGE>
(c) A participant's entitlement to benefits under the Plan shall
be determined by OKFC. Any claim for such benefits shall be considered and
reviewed under the claims procedures established for the Plan.
3.3 Disputed Claims.
A claim with respect to eligibility to participate in the Plan,
eligibility for a benefit, the amount of a benefit or any other matter
relating to a particular participant or beneficiary shall be made to the
Plan Administrator in accordance with the terms of the Plan. The
determination by the Plan Administrator with respect to such claims shall
be binding upon the Trustee. The Trustee shall have no obligation to
determine any claim presented to it and may file suit to have any such
matter resolved by a court of competent jurisdiction. All of the Trustee's
expenses in the court proceeding, including attorney fees, shall be allowed
as administrative expenses of the trust.
3.4 Records.
The Trustee shall keep complete records on the trust fund open to
inspection by OKFC at all reasonable times. In addition to accountings
required below, the Trustee shall furnish to OKFC any information requested
about the trust fund.
3.5 Accountings.
(a) The Trustee shall furnish OKFC with a complete accounting of
the trust fund annually as soon as reasonably practicable after the end of
the trust year showing assets and liabilities and income and expense for
the year. The form and content of the accounting shall be sufficient for
OKFC to include in computing its taxable income the income, deductions and
credits against taxes that are attributable to the trust fund.
(b) OKFC may object to an accounting within 180 days after it is
furnished and require that it be settled by audit by a qualified,
independent certified public accountant. The auditor shall be chosen by
the Trustee from a list of at least three such accountants furnished by
OKFC at the time the audit is requested. Either OKFC or the Trustee may
require that the account be settled by a court of competent jurisdiction,
in lieu of or in conjunction with the audit. All expenses of any audit or
court proceedings, including reasonable attorney fees, shall be allowed as
administrative expenses of the trust.
(c) If OKFC does not object to an accounting within the time
provided, the account shall be settled for the period covered by it. When
an account is settled, it shall be final and binding on all parties,
including all participants and persons claiming through them.
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<PAGE>
3.6 Expenses and Fees.
(a) The Trustee shall be reimbursed for all expenses and shall
be paid a reasonable fee fixed by agreement with OKFC from time to time.
No increase in the fee shall be effective before 60 days after the Trustee
gives notice to OKFC of the increase. The Trustee shall notify OKFC
periodically of expenses and fees.
(b) OKFC shall pay administrative fees and expenses. If not so
paid, the fees and expenses shall be paid from the trust fund. OKFC may
reimburse the trust fund for any fees and expenses paid out of it.
ARTICLE IV
Liability
4.1 Indemnity.
Subject to such limitations as may be imposed by applicable law,
OKFC shall indemnify and hold harmless the Trustee from any claims, loss,
liability, or expense arising from any action or inaction in administration
of this trust based on direction or information from either OKFC, or any
Expert, absent willful misconduct or bad faith.
4.2 Bonding.
The Trustee need not give any bond or other security for
performance of its duties under this trust.
ARTICLE V
Insolvency
5.1 Determination of Insolvency.
(a) For purposes of this trust, an entity is Insolvent if it is
unable to pay its debts as they come due or it is the subject of a pending
proceeding as a debtor under the federal Bankruptcy Code (or any successor
federal statute).
(b) If OKFC or any subsidiary of OKFC that employs one or more
participants in the Plan (individually a "Participating Employer") becomes
Insolvent, the Chief Executive officer and the Board of Directors of the
Participating Employer shall notify the Trustee that the corporation is
Insolvent. If the Trustee receives such notice or receives from any other
person claiming to be a creditor of the Participating Employer a written
allegation that the Participating Employer is Insolvent, the Trustee shall
commence Insolvency Administration under Section 5.2 and shall
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<PAGE>
independently determine whether such insolvency exists. The expenses of
such determination shall be allowed as administrative expenses of the
trust.
(c) Payments from the trust fund to participants under the Plan
shall cease and the Trustee shall commence Insolvency Administration under
Section 5.2 upon the earlier of:
(1) Receipt of a notice or allegation of insolvency under
Section 5.1(b); or
(2) A determination by the Trustee or a court of competent
jurisdiction that the Participating Employer is Insolvent.
(d) The Trustee shall have no obligation to investigate the
financial condition of the Participating Employer prior to receiving a
notice or allegation of insolvency under Section 5.1(b).
5.2 Insolvency Administration.
(a) During Insolvency Administration, the Trustee shall hold the
trust fund for the benefit of the general creditors of the Participating
Employer and make payments only in accordance with Section 5.2(b). The Plan
participants and beneficiaries shall have no greater rights than general
creditors of the Participating Employer. The Trustee shall continue the
investment of the trust fund in accordance with Section 2.2.
(b) The Trustee shall make payments out of the trust fund in one
or more of the following ways:
(1) To general creditors in accordance with instructions
from a court, or a person appointed by a court, having jurisdiction over
the Participating Employer's condition of insolvency;
(2) To Plan participants and beneficiaries in accordance
with such instructions; and
(3) In payment of its own fees or expenses.
5.3 Termination of Insolvency Administration.
(a) Insolvency Administration shall terminate when the Trustee
determines that the Participating Employer:
(1) Is not Insolvent;
(2) Has ceased to be Insolvent; or
(3) Has been determined by a court of competent
jurisdiction not to be Insolvent or to have ceased to be Insolvent.
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<PAGE>
(b) Upon termination of Insolvency Administration under Section
5.3(a), the trust fund shall continue to be held for the benefit of the
participants in the Plan. Benefit payments due during the period of
Insolvency Administration shall be made as soon as practicable, together
with interest from the due dates at a rate equal to the interest rate fixed
by the Pension Benefit Guaranty Corporation for valuing immediate annuities
in the preceding month.
5.4 Creditors' Claims During Solvency.
(a) During periods of Solvency the Trustee shall hold the trust
fund exclusively to pay Plan benefits and fees and expenses of the trust
until all Plan benefits have been paid. Creditors of a Participating
Employer shall not be paid from the trust fund during Solvency, and the
trust fund may not be seized by or subjected to the claims of such
creditors in any way.
(b) A period of Solvency is any period not covered by Section
5.2.
ARTICLE VI
Successor Trustees
6.1 Resignation and Removal.
(a) The Trustee may resign at any time by notice to OKFC, which
shall be effective in 60 days unless OKFC and the Trustee agree otherwise.
(b) The Trustee may be removed by OKFC on 60 days' notice or
shorter notice accepted by the Trustee.
(c) When resignation or removal is effective, the Trustee shall
begin transfer of assets to the successor Trustee immediately. The
transfer shall be completed within 60 days, unless OKFC extends the time
limit.
(d) If the Trustee resigns or is removed, OKFC shall appoint a
successor by the effective date of resignation or removal under Sections
6.1(a) or (b). If no such appointment has been made, the Trustee may apply
to a court of competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the trust.
6.2 Appointment of Successor.
(a) OKFC may appoint any national or state bank or trust company
as a successor to replace the Trustee upon resignation or removal. The
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<PAGE>
appointment shall be effective when accepted in writing by the new Trustee,
which shall have all of the rights and powers of the former Trustee,
including ownership rights in the trust assets. The former Trustee shall
execute any instruments necessary or reasonably requested by OKFC or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts
of any prior Trustee and may retain or dispose of existing trust assets,
subject to Article II. The successor Trustee shall not be responsible for,
and OKFC shall indemnify and hold harmless the successor Trustee from any
claim or liability because of, any action or inaction of any prior Trustee
or any other past event, any existing condition or any existing assets.
6.3 Accountings; Continuity.
(a) A Trustee who resigns or is removed shall submit a final
accounting to OKFC as soon as practicable. The accounting shall be
received and settled as provided in Section 3.5 for regular accountings.
(b) No resignation or removal of the Trustee or change in
identity of the Trustee for any reason shall cause a termination of the
Plan or this trust.
ARTICLE VII
General Provisions
7.1 Interests Not Assignable.
(a) The interest of a participant in the trust fund may not be
assigned, seized by legal process, transferred, or subjected to the claims
of the participant's creditors in any way. An attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise
dispose of promised benefits or the right to receive promised benefits,
before actual receipt of the benefits, shall be void and shall not be
recognized.
(b) Neither OKFC nor any other Participating Employer may create
a security interest in the trust fund in favor of any of its creditors.
The Trustee shall not make payments from the trust fund of any amounts to
creditors of OKFC who are not Plan participants, except as provided in
Section 5.2.
(c) The participants shall have no interest in the assets of the
trust fund beyond the right to receive payment of Plan benefits from such
assets outside periods of Insolvency Administration under Section 5.2.
During Insolvency Administration the participants' rights to trust assets
shall not be superior to those of any other general creditors of the
Participating Employer.
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<PAGE>
7.2 Amendment.
Except as provided in Sections 1.2 and 1.3, no amendment shall
alter or reduce the rights of Plan participants in the Plan, increase the
rights of other general creditors in the assets of the trust fund, or cause
this Trust Agreement or the trust to be revoked and terminated or to become
revocable. The duties and powers of the Trustee shall not be increased
without the Trustee's written consent.
7.3 Applicable Law.
This Trust shall be governed, construed and administered
according to the laws of the State of Michigan, except as preempted by
ERISA.
7.4 Agreement Binding on All Parties.
This Trust Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of any and all present and future
parties and Plan participants.
7.5 Notices and Directions.
Any notice or direction under this trust shall be in writing and
shall be effective when actually delivered, or if mailed, when deposited
postpaid as first-class mail. Mail to a party shall be directed to the
address stated below or to such other address as either party may specify
by notice to the other party. Until notice is given to the contrary,
notices to OKFC and the Trustee shall be addressed as follows:
If to OKFC:
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Attention: Director of Human Resources
If to the Trustee:
Old Kent Bank and Trust Company
200 Monroe, N.W.
Suite 430
Grand Rapids, Michigan 49503
Attention: Corporate Trust Services
7.6 No Implied Duties.
The duties of the Trustee shall be those stated in this trust,
and no other duties shall be implied.
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<PAGE>
IN WITNESS WHEREOF, OKFC and the Trustee have caused this Trust
Agreement to be executed by their respective duly authorized officers on
the date first written above.
OLD KENT FINANCIAL CORPORATION
By:___________________________________________
Its_______________________________________
"OKFC"
OLD KENT BANK AND TRUST COMPANY
By:___________________________________________
Its_______________________________________
"Trustee"
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<PAGE>
- -----------------------------------------------------------------------------
OLD KENT FINANCIAL CORPORATION
EXECUTIVE RETIREMENT INCOME TRUST
TRUST AGREEMENT
Between
OLD KENT FINANCIAL CORPORATION
And
OLD KENT BANK AND TRUST COMPANY
- -----------------------------------------------------------------------------
<PAGE>
OLD KENT FINANCIAL CORPORATION
EXECUTIVE RETIREMENT INCOME TRUST
TABLE OF CONTENTS
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I - Effective Date; Duration . . . . . . . . . . . . . . . . . . .2
1.1 Effective Date and Trust Year. . . . . . . . . . . . . . . . . .2
1.2 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Irrevocability . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II - Trust Fund and Funding Policy . . . . . . . . . . . . . . . .3
2.1 Contributions. . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.3 Return of Excess Assets. . . . . . . . . . . . . . . . . . . . .3
2.4 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.5 Substitution of Other Property . . . . . . . . . . . . . . . . .5
2.6 Administrative Powers of Trustee . . . . . . . . . . . . . . . .5
ARTICLE III - Administration . . . . . . . . . . . . . . . . . . . . . . .8
3.1 Company Representatives. . . . . . . . . . . . . . . . . . . . .8
3.2 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . . .8
3.3 Disputed Claims. . . . . . . . . . . . . . . . . . . . . . . . .8
3.4 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.5 Accountings. . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.6 Expenses and Fees. . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE IV - Liability . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.1 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.2 Bonding. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V - Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Determination of Insolvency. . . . . . . . . . . . . . . . . . 10
5.2 Insolvency Administration. . . . . . . . . . . . . . . . . . . 11
5.3 Termination of Insolvency Administration . . . . . . . . . . . 11
5.4 Creditors' Claims During Solvency. . . . . . . . . . . . . . . 12
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ARTICLE VI - Successor Trustees. . . . . . . . . . . . . . . . . . . . . 12
6.1 Resignation and Removal. . . . . . . . . . . . . . . . . . . . 12
6.2 Appointment of Successor . . . . . . . . . . . . . . . . . . . 13
6.3 Accountings; Continuity. . . . . . . . . . . . . . . . . . . . 13
ARTICLE VII - General Provisions . . . . . . . . . . . . . . . . . . . . 13
7.1 Interests Not Assignable . . . . . . . . . . . . . . . . . . . 13
7.2 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.3 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 14
7.4 Agreement Binding on All Parties . . . . . . . . . . . . . . . 14
7.5 Notices and Directions . . . . . . . . . . . . . . . . . . . . 14
7.6 No Implied Duties. . . . . . . . . . . . . . . . . . . . . . . 15
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<PAGE>
EXHIBIT 10.6
1995-1 AMENDMENT
TO
OLD KENT
EXECUTIVE RETIREMENT INCOME PLAN
This is an amendment, effective July 1, 1995, by Old Kent
Financial Corporation ("OKFC").
W I T N E S S E T H :
WHEREAS, OKFC amended and restated the Old Kent Executive
Retirement Income Plan ("plan") effective January 1, 1989, and amended the
plan effective August 16, 1993;
NOW, THEREFORE, OKFC amends Section 6.2(d) of the plan to read
as follows:
(d) LUMP-SUM ELECTION. If the Participant elects a lump-sum payment,
the Participant's benefit shall be distributed in a single payment. The
amount of the lump sum shall be the actuarially equivalent present value of
the Participant's benefit payable at the Normal Retirement Date. The lump-
sum benefit shall be determined in the manner provided under the Old Kent
Retirement Income Plan as in effect on the date the Participant's
employment terminates. Effective July 1, 1995, the lump-sum election must
be made, signed, and filed with the Administrator while the Participant is
an Employee and at least thirty days before termination of employment. A
lump-sum election made under the terms of the plan in effect prior to
July 1, 1995, may be waived in the same manner, subject to the same time
limit. Only one election or waiver of a prior lump-sum election may be
made after July 1, 1995. The election waiver shall be irrevocable and may
not be altered, amended, or otherwise changed or canceled in any manner or
for any reason after it is made. If not waived after July 1, 1995, in the
specified manner and within the specified time limit, any prior lump-sum
election or waiver shall remain in force, subject to the two-year time
period requirement, if applicable.
A lump-sum election may not be made by a beneficiary and any
lump-sum election shall be void if the Participant dies before the first
day of the month following the date the Participant's employment
terminates. If the Participant fails to make a valid lump-sum election,
or properly waives a previous election, the Participant's benefit shall
be paid as specified in (a), (b), (c), or (e).
<PAGE>
IN WITNESS WHEREOF, this amendment is executed this 19TH day of
JUNE, 1995.
OLD KENT FINANCIAL CORPORATION
By /S/ MARTIN J. ALLEN, JR.
Martin J. Allen, Jr.
Its SR. VICE PRESIDENT & SECRETARY
<PAGE>
EXHIBIT 10.7
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OLD KENT EXECUTIVE THRIFT PLAN
- ---------------------------------------------------------------------------
<PAGE>
OLD KENT EXECUTIVE THRIFT PLAN
ARTICLE 1
ESTABLISHMENT OF PLAN
1.1 ESTABLISHMENT OF PLAN.
Old Kent Financial Corporation ("OKFC") hereby amends and restates the
Old Kent Executive Thrift Plan, a supplemental nonqualified plan for a
select group of management personnel employed by OKFC and any subsidiary of
OKFC. This plan is intended to be a plan described in Sections 201(2),
301(a)(3), and 401(a)(1) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"). This plan is a nonqualified supplemental
executive retirement program which is not subject to limitations in the
Internal Revenue Code applicable to benefits which may be provided through
a qualified, tax-exempt employee benefit plan established under
Section 401(a) of the Internal Revenue Code of 1986, as amended ("Code").
1.2 EFFECTIVE DATE.
The "Effective Date" of this restated plan is January 1, 1990, unless
a provision of this plan specifies a different effective date. Each plan
provision applies until the effective date of an amendment of that
provision.
1.3 APPLICATION TO FORMER PARTICIPANTS.
Except to the extent it amends a provision of the plan which applies
to former Participants or expressly states that it is applicable to former
Participants, an amendment to this plan (including changes included in any
restatement of the plan) shall not apply to a former Participant. If a
former Participant returns to employment with the Employer after the
effective date of an amendment and is designated as eligible to participate
by OKFC, the Participant's rights under the plan shall be determined by the
plan provisions as amended and in effect at that time.
<PAGE>
ARTICLE 2
DEFINITIONS
2.1 DEFINED TERMS.
Defined terms are found at the following locations:
TERM LOCATION
---- --------
Administrator 2.2
Agent for Service of Process 2.3
Beneficiary 2.4
Code 1.1
Compensation 4.1(d)
Diversified Equity Fund 5.4(a)(ii)
Effective Date 1.2
Elective Deferral Credits Account 5.1
Employee 2.5
Employer 2.6
ERISA 1.1
Matching Credits Account 5.1
OKFC 1.1
Old Kent Thrift Plan 2.7
Participant 3.2
Participating Compensation 4.1(e)
Plan Year 2.8
Savings Fund 5.4(a)(i)
Short Term Bond Fund 5.4(a)(iii)
Spouse 2.9
Surviving Spouse 2.10
Valuation Date 2.11
Valuation Period 2.12
2.2 ADMINISTRATOR.
"Administrator" means Old Kent Financial Corporation.
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<PAGE>
2.3 AGENT FOR SERVICE OF PROCESS.
"Agent for Service of Process" means the Administrator or the
individual designated by the Administrator.
2.4 BENEFICIARY.
"Beneficiary" means the individual, trust or other entity designated
by the Participant to receive any benefits payable under this plan after
the Participant's death. A Participant may designate or change a
Beneficiary by filing a signed designation with the Administrator in the
form approved by the Administrator. The Participant's Will is not
effective for this purpose.
If a designation has not been properly completed and filed with the
Administrator or is ineffective for any other reason, the Beneficiary
shall be the Participant's Surviving Spouse. If there is no effective
designation and the Participant does not have a Surviving Spouse, the
remaining benefits, if any, shall be paid to the Participant's estate.
2.5 EMPLOYEE.
"Employee" means an individual employed by the Employer who receives
compensation for personal services performed for the Employer that is
subject to withholding for federal income tax purposes.
2.6 EMPLOYER.
"Employer" means OKFC and any subsidiary of OKFC.
2.7 OLD KENT THRIFT PLAN.
"Old Kent Thrift Plan" means the qualified tax-exempt defined
contribution plan established and maintained by Old Kent Financial
Corporation under Code Sections 401(a) and 401(k).
2.8 PLAN YEAR.
"Plan Year" means the 12-month period beginning each January 1.
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<PAGE>
2.9 SPOUSE.
"Spouse" means the husband or wife to whom the Participant is married
on the date the benefit is scheduled to be paid, or payment is scheduled to
begin. The legal existence of the spousal relationship shall be governed
by the law of the state or other jurisdiction of domicile of the
Participant.
2.10 SURVIVING SPOUSE.
"Surviving Spouse" means the Spouse of the Participant at the time of
the Participant's death who survives the Participant. If the Participant
and Spouse die under circumstances which prevent ascertainment of the order
of their deaths, it shall be presumed for this plan that the Participant
survived the Spouse.
2.11 VALUATION DATE.
"Valuation Date" means the last day of March, June, September and
December.
2.12 VALUATION PERIOD.
"Valuation Period" means any quarterly period of three months ending
with the specified Valuation Date.
ARTICLE 3
PARTICIPATION
3.1 REQUIREMENTS.
Only management or highly compensation Employees shall be eligible to
participate in this plan after both of the following requirements are met:
(a) ONE YEAR OF SERVICE. The Employee has completed a combined total
of at least one year of service with OKFC and any other employer affiliated
with OKFC, including service with an employer prior to affiliation with
OKFC to the extent past service with that employer is granted by OKFC.
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(b) DESIGNATION BY OKFC. The Employee is designated by OKFC as
eligible to participate.
3.2 EFFECTIVE DATE OF PARTICIPATION.
An eligible Employee shall become a Participant ("Participant") on the
date specified by OKFC. Each new Participant must complete the payroll
deduction and election requirements specified in Articles 4 and 7.
3.3 TERMINATION OF PARTICIPATION.
A Participant's status as a Participant shall continue until the
earlier of termination of employment or termination of the Participant's
status as a Participant by OKFC. A former Participant may resume
participation in the plan only upon redesignation as a Participant and as
of the date specified by OKFC. Transfer of employment to OKFC or any
subsidiary of OKFC shall not be treated as termination of employment and
participation in this plan shall continue unless the Participant's status
as a Participant is terminated by OKFC.
3.4 OLD KENT THRIFT PLAN REQUIRED.
Participation in this plan shall be contingent upon participation in
the Old Kent Thrift Plan. Elective deferrals under this plan for a Plan
Year shall be permitted only after applicable limits on pre-tax amounts are
reached in the Old Kent Thrift Plan for such year.
ARTICLE 4
ELECTIVE DEFERRALS AND MATCHING CREDITS
4.1 ELECTIVE DEFERRAL CREDITS.
(a) PAYROLL DEDUCTIONS. Subject to the limitations specified herein,
a Participant may elect to reduce Participating Compensation for a Plan
Year through payroll deductions. Each payroll deduction will earn elective
deferral credits in corresponding dollar amounts to be paid under this plan
as deferred compensation for the Participant. The rate of the payroll
deductions shall be a whole multiple of one percent (1%).
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(b) MAXIMUM AMOUNT. The Participant's payroll deductions elected
pursuant to this plan for each payroll period shall not exceed 16% of
Participating Compensation for the payroll period reduced by the sum of the
Participant's contributions to the Old Kent Thrift Plan for that payroll
period, if any. The limit of 16% of Participating Compensation less
contributions to the Old Kent Thrift Plan also shall apply in the aggregate
for each Plan Year.
(c) PRIOR IRREVOCABLE ELECTION. The election of payroll deductions
shall be made by the Participant on a form provided for that purpose prior
to the beginning of each Plan Year and shall become irrevocable for each
Plan Year as of the beginning of the Plan Year. A new Participant may make
an initial irrevocable election of payroll deductions during the first 30
days of eligibility to participate and such election shall apply only to
Participating Compensation earned following the date of the election. If a
new Participant does not make an election during this 30 day period, the
Participant may not make an election for the initial year of participation.
An election of payroll deductions for a Plan Year shall be discontinued on
the date the Participant's employment terminates. The Participant shall
have no claim or right to payment of the amounts deferred by payroll
deductions and shall be limited solely to the rights and benefits conferred
under the terms of this plan. In no event shall an election to defer
Compensation become effective sooner than the beginning of the next payroll
period following the date of the written, irrevocable election or remain
effective beyond the end of the Plan Year to which it applies.
(d) COMPENSATION. "Compensation" means base salary or wages paid to
a Participant in any Plan Year for personal services performed for the
Employer, including but not limited to vacation pay, holiday pay, retro-
active pay increases, regular sick pay and other forms of remuneration
included in base pay up to 40 hours per week.
Excluded remuneration includes but is not limited to bonuses;
lump-sum severance pay (other than vacation pay paid after employment
terminates); commissions; shift differential; disability income pay; over
40 hours pay; ATM service pay; all payments in the form of contributions to
or benefits paid from insurance (including imputed income from employer
paid group term life insurance), workers' compensation or unemployment
compensation programs; payments in the form of gifts or reimbursements for
expenses; amounts paid with respect to this plan or any other plan of
deferred compensation to which the Company contributes; and all other
extraordinary and supplemental payments or compensation.
Compensation means the amount defined herein before reduction by
payroll deduction amounts, under this plan and other plans, which are not
includable in the Participant's gross income.
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(e) PARTICIPATING COMPENSATION. "Participating Compensation" means
Compensation received for services performed while a Participant, under the
provisions of Article 3, during the Plan Year.
4.2 MATCHING CREDITS.
The Participant shall earn a matching credit for each payroll period
for which the Participant makes a payroll deduction pursuant to this plan
and does not earn the maximum matching contribution for that payroll period
in the Old Kent Thrift Plan. The matching credit for the payroll period
shall be earned at the same rate that matching contributions are credited
in the Old Kent Thrift Plan for that payroll period applied to the elective
deferral credits in this plan, up to a maximum matching credit of 3% of
Participating Compensation, reduced by the amount of any matching
contribution credited to the Participant in the Old Kent Thrift Plan for
the payroll period. The limit of 3% of Participating Compensation less
contributions to the Old Kent Thrift Plan also shall apply in the aggregate
for each Plan Year.
ARTICLE 5
ACCOUNTING; EARNINGS CREDITS
5.1 ACCOUNTING RECORDS.
The Administrator shall maintain separate accounting records for each
Participant. One accounting record, the Participant's "Elective Deferral
Credits Account," shall be maintained for and credited with the
Participant's elective deferral credits plus the earnings credits on the
elective deferral credits described below. A separate accounting record,
the Participant's "Matching Credits Account," shall be maintained with
respect to matching credits for the Participant and earnings credits on the
Participant's matching credits.
5.2 TIMING OF CREDITS.
Elective deferral credits shall be credited to the Participant's
Elective Deferral Credits Account as of the end of the month which includes
the payroll dates on which the corresponding amounts were deducted from
Participating Compensation. Matching credit shall be credited to the
Participant's Matching Credits Account as of the end of the month which
includes the payroll dates on which each matching credit was earned.
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5.3 EARNINGS CREDITS AND DEBITS.
The amount credited to a Participant's Elective Deferral Credits
Account and Matching Credits Account (including prior earnings credits) as
of the beginning of each Valuation Period also shall be credited with an
earnings credit or debit for such Valuation Period. The amount of the
earnings credit shall be an adjustment on the Valuation Date equal to the
increase or decrease which would have occurred if the value of the account
as of the beginning of the Valuation Period increased by one-half of the
monthly additions (elective deferral credits or matching credits, whichever
applies) to the account as of the end of each month in the Valuation Period
and reduced by the amount of any distribution during the Valuation Period
had been invested in the fund at the beginning of the Valuation Period and
withdrawn on the Valuation Date. For this purpose fund means the fund (or
funds) chosen by the Participant to be the investment reference pursuant to
Section 5.4.
Earnings credits shall continue to accrue after a Participant's
employment has terminated and until all amounts due hereunder have been
paid in full. Earnings credits shall not apply to amounts paid or
forfeited during a Valuation Period.
5.4 FUNDS.
Effective January 1, 1991, earnings credits shall be measured and
determined under the following rules:
(a) CHOICES. Each Participant may direct that each of the
Participant's accounts be treated as if invested in one or more of the
following funds:
(i) SAVINGS FUND. The "Savings Fund" which consists of
investments similar to those in the savings fund offered in the Old Kent
Thrift Plan.
(ii) DIVERSIFIED EQUITY FUND. The "Diversified Equity Fund"
which consists of investment units in a fund similar to the diversified
equity fund offered in the Old Kent Thrift Plan.
(iii) SHORT TERM BOND FUND. The "Short Term Bond Fund" which
consists of investments similar to those in the short term bond fund
offered in the Old Kent Thrift Plan.
(b) FREQUENCY. A Participant may change a direction with respect to
existing account balances and with respect to future credits as of the
first day of a Valuation Period. Any change in the investment reference by
the Participant shall be effective not earlier than the first day of the
next Valuation Period following the date on which the change is made.
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(c) WRITTEN DIRECTION. The direction shall be made by the
Participant on a form provided for that purpose at least 30 days prior to
the first day of the Valuation Period. A direction shall be effective on
the first day of the next Valuation Period only when signed by the
Participant and filed with the Administrator, and the direction shall
continue to be in effect until it is revoked or modified in the same
manner.
(d) NO WRITTEN DIRECTION. In the absence of written direction by a
Participant, the Savings Funds shall be used as the investment reference
for all of the Participant's accounts under this plan.
(e) ADDITIONAL TERMS AND CONDITIONS. The Administrator may formulate
additional terms and conditions for direction by the Participant as
necessary or appropriate.
ARTICLE 6
VESTING
6.1 ELECTIVE DEFERRAL CREDITS ACCOUNT.
The right to be paid an amount equal to the sum of the credits in the
Participant's Elective Deferral Credits Account, including earnings credits
in the account, shall not be subject to forfeiture for any reason.
6.2 EARNINGS CREDITS IN MATCHING CREDITS ACCOUNT.
The right to be paid an amount equal to the sum of the Participant's
earnings credits in the Participant's Matching Credits Account shall not be
subject to forfeiture for any reason.
6.3 MATCHING CREDITS.
The right to be paid an amount equal to the sum of the Participant's
matching credits in the Participant's Matching Credits Account shall be
subject to forfeiture under either of the following circumstances:
(a) FIVE YEAR REQUIREMENT. Matching credits shall be forfeited in
the event of termination of employment for any reason other than death
prior to completion of at least five years of service which would qualify
as vesting credit service under the Old Kent Thrift Plan or attainment of
age 55.
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(b) FORFEITURE FOR CAUSE. Notwithstanding the Participant's age or
length of service, if a Participant is discharged, or resigns, for cause,
the right to payment of amounts identified as the Participant's matching
credit shall be forfeited. The Participant shall be deemed to have been
discharged or to have resigned for cause if the Participant's employment
with the Employer terminates due to or in conjunction with the commission
of any criminal act injurious to the Employer, any act evidencing fraud or
dishonesty on the part of the Participant or any intentional damaging of
the property, assets and/or business reputation of the Employer.
The existence of cause shall be established by the Administrator.
The determination by the Administrator shall be subject to a claims
procedure substantially the same as the claims procedure available under
the Old Kent Thrift Plan. If the existence of cause, as defined in the
preceding paragraph, is determined by the Administrator subsequent to
termination of the Participant's employment, such termination of employment
retroactively shall be deemed to have been discharge or resignation for
cause and to result in the specified forfeiture. In such event, the amount
of the forfeiture may be offset against any amounts remaining unpaid
pursuant to this plan and any excess which cannot be forfeited by offset
may be recovered by OKFC from the Participant, the Participant's
Beneficiary and/or the Participant's estate, legal representatives, heirs
and assigns.
ARTICLE 7
PAYMENTS TO PARTICIPANTS
7.1 EVENT OF DISTRIBUTION.
If the Participant's employment terminates for any reason, all amounts
credited to the Participant shall be distributed at the time and in the
manner specified herein. A transfer of employment to OKFC or any
subsidiary of OKFC is not a termination of employment.
7.2 FORM OF PAYMENT.
At the time of the initial irrevocable election to defer Compensation
under this plan, each Participant shall irrevocably elect a form of
payment. The following forms of payment may be elected by a Participant:
(a) LUMP SUM. A single lump-sum payment of the entire amount
promised under this plan, or
(b) INSTALLMENTS. Payment of the entire amount promised under this
plan in not more than 10 annual installments.
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If the total amount to be distributed does not exceed $3,500, the
Participant shall be paid a lump-sum payment under (a) above.
If the Participant fails to make an election of a form of payment by
the required date, the Participant shall be paid a lump-sum payment.
7.3 AMOUNT OF PAYMENT.
Except to the extent matching credits are forfeited under Article 6,
the Participant shall be paid an amount which is the sum of the
Participant's Elective Deferral Credits Account plus the Participant's
Matching Credits Account and earnings credits in the Participant's Elective
Deferral Credits Account and Matching Credits Account. The amount to be
distributed shall be determined as follows:
(a) LUMP SUM. For a lump sum distribution, the total amount to be
distributed shall be determined as of the Valuation Date preceding the date
of payment.
(b) INSTALLMENTS. If payment is in installments, the initial amount
to be distributed shall be the total amount due as of the most recent
Valuation Date preceding the initial payment divided by the number of
installment payments elected. Future installments shall be determined by
dividing the total amount remaining unpaid as of the most recent Valuation
Date preceding the date of payment by the remaining number of annual
installment payments.
With respect to a lump-sum payment or each installment payment, there
shall be no earnings credit or other adjustment except an applicable
forfeiture, for the period from the Valuation Date preceding the date of
payment to the date of payment.
7.4 MANNER OF PAYMENT.
Payments shall be paid wholly in cash directly by the Employer or
indirectly through a grantor trust (owned or maintained by the Employer)
to the Participant or the Participant's Beneficiary. If a trust is
established, the Employer shall not be relieved of its obligation and
liability to pay the benefits of this plan except to the extent payments
are actually made from the trust.
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7.5 TIME OF PAYMENT.
A lump-sum payment or an initial installment payment shall be made on
March 1 following the end of the calendar year in which the Participant's
employment terminates. Later installment payments shall be made on March 1
following the end of each subsequent calendar year until the total amount
to be distributed under this plan is distributed.
7.6 DEATH.
(a) PAYMENT TO BENEFICIARY. If the Participant dies prior to payment
of all amounts due under the plan, payment of all remaining amounts shall
be made to the Participant's Beneficiary. Payments to a Beneficiary
following a Participant's death shall be in the form elected by the
Participant and shall be made or shall begin on the date specified in
Section 7.5. At the time of the initial irrevocable election to defer
Compensation under this plan, the Participant may designate a form of
payment following the Participant's death which is different from the form
of payment during the Participant's lifetime.
(b) PAYMENT TO ESTATE. If payment is to be made to the estate of a
Participant, payment shall be made in a lump sum 90 days after the date of
the Participant's death.
(c) GENERATION-SKIPPING TRANSFER TAX. Notwithstanding any other
provision in this plan or any related trust agreement, OKFC may withhold or
direct the trustee to withhold any benefits payable to a Beneficiary as a
result of the death of a Participant or any other Beneficiary until it can
be determined whether a generation-skipping transfer tax, as defined in
Chapter 13 of the Code, or any substitute provisions therefor, is payable
by OKFC or the trustee and the amount of generation-skipping transfer tax,
including interest, that is due. If such tax is payable, the benefits
otherwise payable hereunder shall be reduced by an amount equal to the
generation-skipping transfer tax and interest. Any benefits withheld shall
be payable as soon as there is a final determination of the applicable
generation-skipping transfer tax and interest. No interest shall be
payable to any Beneficiary for the period from the date of death to the
time when the amount of benefits payable to a Beneficiary can be fully
determined pursuant to this paragraph.
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ARTICLE 8
GENERAL PROVISIONS
8.1 AMENDMENT; TERMINATION.
Old Kent Financial Corporation reserves the right to amend this plan
prospectively or retroactively, or to terminate this plan, provided that an
amendment or termination may not reduce or revoke the accrued amounts (less
any applicable forfeitures) promised to be paid to Participants as of the
later of the date of adoption of the amendment or the effective date of the
amendment or termination.
Upon termination of this plan, the amounts of affected Participants
shall become nonforfeitable. The Participant's accounts shall be
administered and distributed in accordance with the provisions of this
plan.
8.2 EMPLOYMENT RELATIONSHIP.
Nothing in this plan shall be construed as creating a contract of
employment between the Employer and any Participant or otherwise conferring
upon any Participant or other person a legal right to continuation of
employment or any rights other than those specified herein. This plan
shall not limit or affect the right of the Employer to discharge or retire
a Participant.
8.3 RIGHTS NOT ASSIGNABLE.
Except for designation of a Beneficiary, amounts promised hereunder
shall not be subject to assignment, conveyance, transfer, anticipation,
pledge, alienation, sale, encumbrance, or charge, whether voluntary or
involuntary, by the Participant or any Beneficiary of the Participant, even
if directed under a qualified domestic relations order or other divorce
order. An interest in an amount promised shall not provide collateral or
security for a debt of a Participant or Beneficiary or be subject to
garnishment, execution, assignment, levy, or to another form of judicial
or administrative process or to the claim of a creditor of a Participant
or Beneficiary, through legal process or otherwise. Any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or
to otherwise dispose of benefits payable, before actual receipt of the
benefits, or a right to receive benefits, shall be void and shall not be
recognized.
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8.4 UNSECURED CREDITOR STATUS.
A Participant shall be an unsecured general creditor of the Employer
as to the payment of any benefit under this plan. The right of any
Participant or Beneficiary to be paid the amount promised in this plan
shall be no greater than the right of any other general, unsecured creditor
of the Employer.
8.5 NO TRUST OR FIDUCIARY RELATIONSHIP.
Nothing contained in this plan shall be deemed to create a trust or
fiduciary relationship of any kind for the benefit of any Participant or
Beneficiary.
8.6 CONSTRUCTION.
The singular includes the plural, and the plural includes the
singular, unless the context clearly indicates the contrary. Capitalized
terms (except those at the beginning of a sentence or part of a heading)
having the meaning specified in this plan. If a capitalized term is not
defined in this plan, the term shall have, for purposes of this plan, the
stated definitions of those terms in the Old Kent Thrift Plan as amended
from time to time.
8.7 UNFUNDED PLAN.
This shall be an unfunded plan within the meaning of ERISA. Benefits
provided herein shall consist solely of aggregate unfunded credits which
are the sum of elective deferrals, matching credits and earnings credits
and shall constitute only an unsecured contractual promise to pay in
accordance with the terms of this plan by the Employer.
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TRUST AGREEMENT FOR
OLD KENT FINANCIAL CORPORATION
EXECUTIVE THRIFT TRUST
This Trust Agreement is made this 15th day of February 1991,
between OLD KENT FINANCIAL CORPORATION, a Michigan corporation ("OKFC),
and OLD KENT BANK AND TRUST COMPANY (the "Trustee").
OKFC hereby establishes the trust to hold all money and other
property, together with the income thereon, paid or transferred to the
trust under this Trust Agreement. The Trustee accepts the trust and agrees
to hold in trust all money and other property transferred to it hereunder
for the uses and purposes set forth herein, and the Trustee agrees to
discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
INTRODUCTION
OKFC has adopted the Old Kent Executive Thrift Plan (the "Plan")
for the benefit of selected management and highly compensated employees.
The purpose of this trust is to give Plan participants greater
security by placing assets in trust to pay benefits under the Plan, unless
OKFC or a subsidiary of OKFC that employs one or more participants in the
Plan becomes insolvent, in which case the assets will be used to pay
creditors of the insolvent corporation. OKFC shall be liable to
participants to make all payments required under the Plan to the extent
that such payments are not made from this trust. Distributions made from
this trust to participants or their beneficiaries shall, to the extent of
such distributions, satisfy OKFC's obligations to pay benefits under the
Plan.
OKFC and the Trustee agree that the trust has been established to
pay obligations of OKFC pursuant to the Plan and, upon insolvency, is
subject to the rights of general creditors of OKFC. The trust is intended
to be a grantor trust under the provisions of Sections 671 through 677 of
the Internal Revenue Code of 1986 as amended (the "Code"). OKFC agrees to
report all items of income and deduction of the trust on its income tax
returns. OKFC shall have no right to any distributions from the trust or
any claim against the trust for funds necessary to pay any income taxes
that OKFC is required to pay. No contribution to or income of the trust is
intended to be taxable to Plan participants until benefits are distributed
to them.
The Plan is intended to be "unfunded" as described in Parts 2
through 4 of Subtitle B of Title 1 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") and maintained primarily for the
purpose of providing deferred compensation for a select group of management
and highly compensated employees.
<PAGE>
ARTICLE I
EFFECTIVE DATE; DURATION
1.1 EFFECTIVE DATE AND TRUST YEAR.
This trust shall become effective when the Trust Agreement has
been executed by OKFC and the Trustee, and OKFC has made a contribution to
the trust. The trust year shall coincide with OKFC's fiscal year. OKFC
shall report any change in its fiscal year to the Trustee.
1.2 DURATION.
(a) This trust shall continue in effect until all assets of the
trust fund are exhausted through distribution of benefits to participants,
payment to general creditors in the event of insolvency, payment of fees
and expenses of the Trustee, and return of remaining funds to OKFC pursuant
to Section 1.3.
(b) The Trustee may make payments before they would otherwise be
due if, based on a change in the federal tax or revenue laws, a published
ruling, or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court
of competent jurisdiction involving a participant or a beneficiary, or a
closing agreement made under Section 7121 of the Code that is approved by
the Internal Revenue Service and involves a participant, it is determined
that a participant has or will recognize income for federal income tax
purposes with respect to amounts that are or will be payable under the Plan
before they are to be paid.
1.3 IRREVOCABILITY.
This trust shall become irrevocable upon the issuance by the
Internal Revenue Service of a private letter ruling establishing that it is
unfunded for purposes of the Code. If such a ruling is denied, OKFC may
revoke the trust and take possession of all assets held by the Trustee for
the trust. This trust also shall become irrevocable if such a ruling is
not requested by OKFC within 90 days after the date of establishing this
trust.
Except as provided in Section 1.2, the trust shall be irrevocable
with respect to amounts contributed to it, including income attributable to
such contributions, until all benefit rights under the Plan for
participants who are covered by this trust are satisfied. The Trustee
shall then return to OKFC any assets remaining in the trust.
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ARTICLE II
TRUST FUND AND FUNDING POLICY
2.1 CONTRIBUTIONS.
(a) OKFC may contribute to the trust such amounts as shall be
reasonably necessary to provide for the payment of all account balances
accrued under the Plan to participants covered by this trust. The time of
payment of contributions shall be decided by OKFC. Contributions may be in
cash or in kind.
(b) The Trustee shall accept the contributions made by OKFC and
shall hold them as a trust fund for the payment of benefits under the Plan.
The Trustee shall not be responsible for the adequacy of the trust fund to
pay all account balances accrued under the Plan.
2.2 INVESTMENTS.
The Trustee shall invest and reinvest the assets of the trust as
the Trustee, in its sole discretion, may deem appropriate, including,
without limitation, improved and unimproved real property (whether or not
income producing); common and preferred stocks; shares or certificates of
participation issued by investment companies; investment trusts and mutual
funds; common or pooled investment funds; bonds; debentures; mortgages;
deeds of trust; insurance and annuity contracts; notes secured by real or
personal property; leases; ground leases; limited partnership interests;
real or personal property interests owned, developed or managed by joint
ventures or limited partnerships; obligations of governmental bodies, both
domestic and foreign; notes, commercial paper, certificates of deposit, and
other securities or evidences of indebtedness, secured or unsecured,
including variable amount notes, convertible securities of all types and
kinds, interest-bearing savings or deposit accounts with any federally
insured bank (including the Trustee) or any federally insured savings and
loan association; and any other property permitted as trust investments
under applicable law. The Trustee is authorized to invest in any common or
pooled investment fund or mutual fund now or hereafter maintained by the
Trustee and any interest-bearing savings or deposit accounts with the
banking department of the Trustee.
2.3 ACCOUNTS.
(a) The Trustee shall establish a separate account for each Plan
participant who is covered by this trust, to which it shall credit
contributions for that participant. The account shall be a bookkeeping
account only, shall reflect an undivided interest in assets of the trust
fund and shall not require any segregation of particular assets. OKFC
shall direct the Trustee with respect to the allocation of assets of the
trust fund among the separate accounts. With respect to any new
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contributions to the trust by OKFC after separate accounts have been
established, OKFC shall designate each Plan participant for whom such
contributions are made. If the Trustee does not receive a valid direction
with respect to the allocation of assets of the trust fund among separate
accounts or does not receive a valid direction with respect to the
participants for whom new contributions are made within a reasonable time
after such accounts are established or such contributions are received, the
unallocated assets shall be allocated and new contributions shall be
credited in proportion to the account balances of the participants entitled
thereto. The Trustee shall have no duty to inquire whether any of the
foregoing allocations of assets of the trust fund or contributions to the
trust are made in compliance with the terms of the Plan. After separate
accounts are established, assets allocated to an account for one Plan
participant may not be utilized to provide benefits for any other
participants until all benefits for such participant have been paid in
full.
(b) The Trustee shall allocate investment earnings and losses of
the trust fund among the accounts in proportion to their balances, except
that changes in the value of insurance and annuity contracts shall be
allocated to the account or accounts for which they are held. Payments to
general creditors during Insolvency Administration under Section 5.2 shall
be charged against the accounts in proportion to their balances, except
that payment of benefits to a Plan participant as a general creditor shall
be charged against the account for that participant.
(c) OKFC and the Trustee may agree that the accounts under this
Section 2.3 shall be maintained by the Plan Administrator, or such other
person as may be designated by the Plan Administrator, rather than the
Trustee.
2.4 SUBSTITUTION OF OTHER PROPERTY.
(a) In the event that any contributions to the trust are made in
kind as provided in Section 2.1(a), OKFC shall have the power to reacquire
part or all of the trust fund consisting of such contributions at any time,
by substituting other readily marketable property of equivalent value, net
of any costs of disposition.
Such power is exercisable in a non-fiduciary capacity and may be
exercised without the approval or consent of participants or any other
person.
(b) The value of all assets in the trust fund shall be fair
market value. Values shall be determined by the Trustee and may be based
on the determination of Experts, as described in Section 2.5(b).
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2.5 ADMINISTRATIVE POWERS OF TRUSTEE.
(a) Subject in all respects to applicable provisions of this
Trust Agreement and the Plan, including limitations on investment of the
trust fund, the Trustee shall have the rights, powers and privileges of an
absolute owner when dealing with property of the trust, including, without
limitation, the powers listed below:
(1) To sell, convey, transfer, exchange, partition, lease,
and otherwise dispose of any of the assets of the trust at any time held by
the Trustee under this Trust Agreement;
(2) To exercise any option, conversion privilege or
subscription right given the Trustee as the owner of any security held in
the trust; to vote any corporate stock either in person or by proxy, with
or without power of substitution; to consent to or oppose any
reorganization, consolidation, merger, readjustment of financial structure,
sale, lease or other disposition of the assets of any corporation or other
organization, the securities of which may be an asset of the trust; and to
take any action in connection therewith and receive and retain any
securities resulting therefrom;
(3) To deposit any security with any protective or
reorganization committee, and to delegate to such committee such power and
authority with respect thereto as the Trustee may deem proper, and to agree
to pay out of the trust such portion of the expenses and compensation of
such committee as the Trustee, in its discretion, shall deem appropriate;
(4) To cause any property of the trust to be issued, held
or registered in the name of the Trustee as trustee, or in the name of one
or more of its nominees, or one or more nominees of any system for the
central handling of securities, or in such form that title will pass by
delivery, provided that the records of the Trustee shall in all events
indicate the true ownership of such property;
(5) To renew or extend the time of payment of any
obligation due or to become due;
(6) To commence or defend lawsuits or legal or
administrative proceedings; to compromise, arbitrate or settle claims,
debts or damages in favor of or against the trust; to deliver or accept, in
either total or partial satisfaction of any indebtedness or other
obligation, any property; to continue to hold for such period of time as
the Trustee may deem appropriate any property so received; and to pay all
costs and reasonable attorney fees in connection therewith out of the
assets of the trust;
(7) To grant options to purchase or to acquire options to
purchase any real property;
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<PAGE>
(8) To foreclose any obligation by judicial proceeding or
otherwise;
(9) To manage any real property in the trust in the same
manner as if the Trustee were the absolute owner thereof, including the
power to lease the same for such term or terms within or beyond the
existence of the trust and upon such conditions, including (but not by way
of limitation) agreements for the purchase or disposal of buildings thereon
and options to the tenant to renew such lease from time to time, or to
purchase such property, as the Trustee may deem proper;
(10) To borrow money from any person in such amounts, upon
such terms and for such purposes as the Trustee, in its discretion, may
deem appropriate; and in connection therewith, to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust assets
as security; and to lend money on a secured or unsecured basis to any
person other than a party in interest;
(11) To appoint one or more persons or entities as agents or
custodians to act as ancillary trustees or sub-trustees for the purpose of
investing in and holding title to real or personal property or any interest
therein located outside the State of Michigan; provided that any such
ancillary trustee or sub-trustee shall act with such power, authority,
discretion, duties, and functions of the Trustee as shall be specified in
the instrument establishing such ancillary or sub-trust, including without
limitation, the power to receive, hold and manage property, real or
personal, or undivided interests therein; and the Trustee may pay the
reasonable expenses and compensation of such ancillary trustees or
subtrustees out of the trust;
(12) To deposit any securities held in the trust with a
securities depository;
(13) To retain in money market funds or other daily
interest, daily availability funds and investment cash so much of the trust
assets as the Trustee deems advisable;
(14) To determine how all receipts and disbursements shall
be credited, charged or apportioned as between income and principal, and
the decision of the Trustee shall be final and not subject to question by
any participant or beneficiary of the trust; and
(15) Generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the
orderly administration or protection of the trust fund.
Notwithstanding the foregoing or any other language in this
Trust Agreement, the Trustee shall not have the power to start, enter into,
or otherwise engage in any business enterprise, or continue to operate any
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<PAGE>
business interest that becomes part of the trust estate, if such activity
constitutes "carrying on business" as referred to in Section 301.7701-2 of
the Procedure and Administration Regulations under the Internal Revenue
Code of 1986, as amended.
(b) The Trustee may engage one or more independent attorneys,
accountants, actuaries, appraisers or other experts (an "Expert") for any
purpose, including the determination of disputed claims pursuant to Section
3.3. The determination of an Expert shall be final and binding on OKFC, the
Trustee, and all of the participants unless within 30 days after receiving
a determination deemed by any participant to be adverse, the participant
initiates suit in a court of competent jurisdiction seeking appropriate
relief. The Trustee shall have no duty to oversee or independently
evaluate the determination of the Expert. The Trustee shall be authorized
to pay the fees and expenses of any Expert out of the assets of the trust
fund.
(c) OKFC shall from time to time pay taxes (including interest
and applicable penalties) of any and all kinds whatsoever that at any time
are lawfully levied or assessed upon or become payable in respect of the
trust fund, the income or any property forming a part thereof, or any
security transaction pertaining thereto. To the extent that any taxes
levied or assessed upon the trust fund are not paid by OKFC or contested by
OKFC pursuant to the last sentence of this paragraph, the Trustee shall pay
such taxes out of the trust fund, and OKFC may, in its discretion, deposit
into the trust fund an amount equal to the amount paid from the trust fund
to satisfy such tax liability. If requested by OKFC, the Trustee shall, at
OKFC's expense, contest the validity of such taxes in any manner deemed
appropriate by OKFC or its counsel, but only if it has received an
indemnity bond or other security satisfactory to it to pay any expenses of
such contest. Alternatively, OKFC may itself contest the validity of any
such taxes.
ARTICLE III
ADMINISTRATION
3.1 COMPANY REPRESENTATIVES.
(a) OKFC is the Plan Administrator for the Plan and has general
responsibility to interpret the Plan and determine the rights of
participants and beneficiaries.
(b) The Trustee shall be given the names and specimen signatures
of OKFC representatives authorized to take action with regard to the
administration of the Plan and this trust. The Trustee shall accept and
rely upon the names and signatures until notified of any change.
Instructions to the Trustee shall be signed for OKFC by any such
representatives as OKFC may designate.
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3.2 PAYMENT OF BENEFITS.
(a) The Trustee shall pay benefits to participants and
beneficiaries on behalf of OKFC in satisfaction of OKFC's obligations under
the Plan or shall reimburse OKFC for payments made directly by OKFC in
satisfaction of its obligations under the Plan. Benefit payments from an
account, or reimbursements therefor, shall be made until the assets of the
account are exhausted. OKFC's obligation shall not be limited to the trust
fund, and a participant shall have a claim against OKFC for any payment not
made by the Trustee.
(b) The Trustee shall make payments in accordance with written
directions from OKFC. To the extent that the Trustee makes payments to
participants and beneficiaries as directed by OKFC, the Trustee shall make
any required income tax withholding and shall pay amounts withheld to
taxing authorities on OKFC's behalf or determine that such amounts have
been paid by OKFC.
(c) A participant's entitlement to benefits under the Plan shall
be determined by OKFC. Any claim for such benefits shall be considered and
reviewed under the claims procedures established for the Plan.
3.3 DISPUTED CLAIMS.
A claim with respect to eligibility to participate in the Plan,
eligibility for a benefit, the amount of a benefit or any other matter
relating to a particular participant or beneficiary shall be made to the
Plan Administrator in accordance with the terms of the Plan. The
determination by the Plan Administrator with respect to such claims shall
be binding upon the Trustee. The Trustee shall have no obligation to
determine any claim presented to it and may file suit to have such matter
resolved in a court of competent jurisdiction. All of the Trustee's
expenses in the court proceeding, including attorney fees, shall be allowed
as administrative expenses of the trust.
3.4 RECORDS.
The Trustee shall keep complete records on the trust fund open to
inspection by OKFC at all reasonable times. In addition to accountings
required below, the Trustee shall furnish to OKFC any information requested
about the trust fund.
3.5 ACCOUNTINGS.
(a) The Trustee shall furnish OKFC with a complete accounting of
the trust fund annually as soon as reasonably practicable after the end of
the trust year showing assets and liabilities and income and expense for
the year. The form and content of the accounting shall be sufficient-for
OKFC to include in computing its taxable income the income, deductions and
credits against taxes that are attributable to the trust fund.
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(b) OKFC may object to an accounting within 180 days after it is
furnished and require that it be settled by audit by a qualified,
independent certified public accountant. The auditor shall be chosen by
the Trustee from a list of at least three such accountants furnished by
OKFC at the time the audit is requested. Either OKFC or the Trustee may
require that the account be settled by a court of competent jurisdiction,
in lieu of or in conjunction with the audit. All expenses of any audit or
court proceedings, including reasonable attorney fees, shall be allowed as
administrative expenses of the trust.
(c) If OKFC does not object to an accounting within the time
provided, the account shall be settled for the period covered by it. When
an account is settled, it shall be final and binding on all parties,
including all participants and persons claiming through them.
3.6 EXPENSES AND FEES.
(a) The Trustee shall be reimbursed for all expenses and shall
be paid a reasonable fee fixed by agreement with OKFC from time to time.
No increase in the fee shall be effective before 60 days after the Trustee
gives notice to OKFC of the increase. The Trustee shall notify OKFC
periodically of expenses and fees.
(b) OKFC shall pay administrative fees and expenses. If not so
paid, the fees and expenses shall be paid from the trust fund. OKFC may
reimburse the trust fund for any fees and expenses paid out of it.
ARTICLE IV
LIABILITY
4.1 INDEMNITY.
Subject to such limitations as may be imposed by applicable law,
OKFC shall indemnify and hold harmless the Trustee from any claims, loss,
liability, or expense arising from any action or inaction in administration
of this trust based on direction or information from either OKFC, or any
Expert, absent willful misconduct or bad faith.
4.2 BONDING.
The Trustee need not give any bond or other security for
performance of its duties under this trust.
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ARTICLE V
INSOLVENCY
5.1 DETERMINATION OF INSOLVENCY.
(a) For purposes of this trust, an entity is Insolvent if it is
unable to pay its debt as they come due or it is the subject of a pending
proceeding as a debtor under the federal Bankruptcy Code (or any successor
federal statute).
(b) If OKFC or any subsidiary of OKFC that employs one or more
participants in the Plan (individually a "Participating Employer") becomes
Insolvent, the Chief Executive officer and the Board of Directors of the
Participating Employer shall notify the Trustee that the corporation is
Insolvent. If the Trustee receives such notice or receives from any other
person claiming to be a creditor of the Participating Employer a written
allegation that the Participating Employer is Insolvent, the Trustee shall
commence Insolvency Administration under Section 5.2 and shall
independently determine whether such insolvency exists. The expenses of
such determination shall be allowed as administrative expenses of the
trust.
(c) Payments from the trust fund to participants under the Plan
shall cease and the Trustee shall commence Insolvency Administration under
Section 5.2 upon the earlier of:
(1) Receipt of a notice or allegation of insolvency under
Section 5.1(b), or
(2) A determination by the Trustee or a court of competent
jurisdiction that the Participating Employer is Insolvent.
(d) The Trustee shall have no obligation to investigate the
financial condition of the Participating Employer prior to receiving a
notice or allegation of insolvency under Section 5. 1 (b).
5.2 INSOLVENCY ADMINISTRATION.
(a) During Insolvency Administration, the Trustee shall hold the
trust fund for the benefit of the general creditors of the Participating
Employer and make payments only in accordance with Section 5. 2 (b). The
Plan participants and beneficiaries shall have no greater rights than
general creditors of the Participating Employer. The Trustee shall
continue the investment of the trust fund in accordance with Section 2.2.
(b) The Trustee shall make payments out of the trust fund in one
or more of the following ways:
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(1) To general creditors in accordance with instructions
from a court, or a person appointed by a court, having jurisdiction over
the Participating Employer's condition of insolvency;
(2) To Plan participants and beneficiaries in accordance
with such instructions; and
(3) In payment of its own fees or expenses.
5.3 TERMINATION OF INSOLVENCY ADMINISTRATION.
(a) Insolvency Administration shall terminate when the Trustee
determines that the Participating Employer:
(1) Is not Insolvent;
(2) Has ceased to be Insolvent; or
(3) Has been determined by a court of competent
jurisdiction not to be Insolvent or to have ceased to be Insolvent.
(b) Upon termination of Insolvency Administration under Section
5.3(a), the trust fund shall continue to be held for the benefit of the
participants in the Plan. Benefit payments due during the period of
Insolvency Administration shall be made as soon as practicable, together
with interest from the due dates at a rate equal to the interest rate fixed
by the Pension Benefit Guaranty Corporation for valuing immediate annuities
in the preceding month.
5.4 CREDITORS' CLAIMS DURING SOLVENCY.
(a) During periods of Solvency the Trustee shall hold the trust
fund exclusively to pay Plan benefits and fees and expenses of the trust
until all Plan benefits have been paid. Creditors of a Participating
Employer shall not be paid from the trust fund during Solvency, and the
trust fund may not be seized by or subjected to the claims of such
creditors in any way.
(b) A period of Solvency is any period not covered by Section
5.2.
ARTICLE VI
SUCCESSOR TRUSTEES
6.1 RESIGNATION AND REMOVAL.
(a) The Trustee may resign at any time by notice to OKFC, which
shall be effective in 60 days unless OKFC and the Trustee agree otherwise.
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(b) The Trustee may be removed by OKFC on 60 days' notice or
shorter notice accepted by the Trustee.
(c) When resignation or removal is effective, the Trustee shall
begin transfer of assets to the successor Trustee immediately. The transfer
shall be completed within 60 days, unless OKFC extends the time limit.
(d) If the Trustee resigns or is removed, OKFC shall appoint a
successor by the effective date of resignation or removal under Sections
6.1(a) or (b). If no such appointment has been made, the Trustee may apply
to a court of competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the trust.
6.2 APPOINTMENT OF SUCCESSOR.
(a) OKFC may appoint any national or state bank or trust company
as a successor to replace the Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee,
which shall have all of the rights and powers of the former Trustee,
including ownership rights in the trust assets. The former Trustee shall
execute any instruments necessary or reasonably requested by OKFC or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts
of any prior Trustee and may retain or dispose of existing trust assets,
subject to Article II. The successor Trustee shall not be responsible for,
and OKFC shall indemnify and hold harmless the successor Trustee from any
claim or liability because of, any action or inaction of any prior Trustee
or any other past event, any existing condition or any existing assets.
6.3 ACCOUNTINGS; CONTINUITY.
(a) A Trustee who resigns or is removed shall submit a final
accounting to OKFC as soon as practicable. The accounting shall be
received and settled as provided in Section 3.5 for regular accountings.
(b) No resignation or removal of the Trustee or change in
identity of the Trustee for any reason shall cause a termination of the
Plan or this trust.
ARTICLE VII
GENERAL PROVISIONS
7.1 INTERESTS NOT ASSIGNABLE.
(a) The interest of a participant in the trust fund may not be
assigned, seized by legal process, transferred, or subjected to the claims
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of the participant's creditors in any way. An attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise
dispose of promised benefits or the right to receive promised benefits,
before actual receipt of the benefits, shall be void and shall not be
recognized.
(b) Neither OKFC nor any other Participating Employer may create
a security interest in the trust fund in favor of any of its creditors.
The Trustee shall not make payments from the trust fund of any amounts to
creditors of OKFC who are not Plan participants, except as provided in
Section 5.2.
(c) The participants shall have no interest in the assets of the
trust fund beyond the right to receive payment of Plan benefits from such
assets outside periods of Insolvency Administration under Section 5.2.
During Insolvency Administration the participants' rights to trust assets
shall not be superior to those of any other general creditors of the
Participating Employer.
7.2 AMENDMENT.
Except as provided in Sections 1.2 and 1.3, no amendment shall
alter or reduce the rights of Plan participants in the Plan, increase the
rights of other general creditors in the assets of the trust fund, or cause
this Trust Agreement or the trust to be revoked and terminated or to become
revocable. The duties and powers of the Trustee shall not be increased
without the Trustee's written consent.
7.3 APPLICABLE LAW.
This Trust shall be governed, construed and administered
according to the laws of the State of Michigan, except as preempted by
ERISA.
7.4 AGREEMENT BINDING ON ALL PARTIES.
This Trust Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of any and all present and future
parties and Plan participants.
7.5 NOTICES AND DIRECTIONS.
Any notice or direction under this trust shall be in writing and
shall be effective when actually delivered, or if mailed, when deposited
postpaid as first-class mail. Mail to a party shall be directed to the
address stated below or to such other address as either party may specify
by notice to the other party. Until notice is given to the contrary,
notices to OKFC and the Trustee shall be addressed as follows:
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If to OKFC:
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Attention: Director of Human Resources
If to the Trustee:
Old Kent Bank and Trust Company
200 Monroe, N.W.
Suite 430
Grand Rapids, Michigan 49503
Attention: Corporate Trust Services
7.6 NO IMPLIED DUTIES.
The duties of the Trustee shall be those stated in this trust,
and no other duties shall be implied.
IN WITNESS WHEREOF, OKFC and the Trustee have caused this Trust
Agreement to be executed by their respective duly authorized officers on
the date first written above.
OLD KENT FINANCIAL CORPORATION
By:___________________________________________
Its _______________________________________
"OKFC"
OLD KENT BANK AND TRUST COMPANY
By:___________________________________________
Its _______________________________________
"Trustee"
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- -----------------------------------------------------------------------------
OLD KENT FINANCIAL CORPORATION
EXECUTIVE THRIFT TRUST
TRUST AGREEMENT
Between
OLD KENT FINANCIAL CORPORATION
And
OLD KENT BANK AND TRUST COMPANY
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<PAGE>
OLD KENT FINANCIAL CORPORATION
EXECUTIVE THRIFT TRUST
TABLE OF CONTENTS
PAGE
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I - Effective Date; Duration . . . . . . . . . . . . . . . . . . .2
1.1 Effective Date and Trust Year. . . . . . . . . . . . . . . . . .2
1.2 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Irrevocability . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II - Trust Fund and Funding Policy . . . . . . . . . . . . . . . .3
2.1 Contributions. . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.3 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.4 Substitution of Other Property . . . . . . . . . . . . . . . . .4
2.5 Administrative Powers of Trustee.. . . . . . . . . . . . . . . .4
ARTICLE III - Administration . . . . . . . . . . . . . . . . . . . . . . .7
3.1 Company Representatives. . . . . . . . . . . . . . . . . . . . .7
3.2 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . . .7
3.3 Disputed Claims. . . . . . . . . . . . . . . . . . . . . . . . .8
3.4 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.5 Accountings. . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.6 Expenses and Fees. . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE IV - Liability . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.1 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.2 Bonding. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE V - Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Determination of Insolvency. . . . . . . . . . . . . . . . . . 10
5.2 Insolvency Administration. . . . . . . . . . . . . . . . . . . 10
5.3 Termination of Insolvency Administration . . . . . . . . . . . 11
5.4 Creditors' Claims During Solvency. . . . . . . . . . . . . . . 11
ARTICLE VI - Successor Trustees. . . . . . . . . . . . . . . . . . . . . 12
6.1 Resignation and Removal. . . . . . . . . . . . . . . . . . . . 12
6.2 Appointment of Successor . . . . . . . . . . . . . . . . . . . 12
6.3 Accountings; Continuity. . . . . . . . . . . . . . . . . . . . 12
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ARTICLE VII - General Provisions . . . . . . . . . . . . . . . . . . . . 13
7.1 Interests Not Assignable . . . . . . . . . . . . . . . . . . . 13
7.2 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.3 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 13
7.4 Agreement Binding on All Parties . . . . . . . . . . . . . . . 14
7.5 Notices and Directions . . . . . . . . . . . . . . . . . . . . 14
7.6 No Implied Duties. . . . . . . . . . . . . . . . . . . . . . . 14
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EXHIBIT 10.9
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OLD KENT DEFERRED COMPENSATION PLAN
- ---------------------------------------------------------------------------
<PAGE>
OLD KENT DEFERRED COMPENSATION PLAN
ARTICLE 1
ESTABLISHMENT OF PLAN
1.1 ESTABLISHMENT OF PLAN.
Old Kent Financial Corporation ("OKFC") hereby amends and restates the
Old Kent Deferred Compensation Plan, a supplemental nonqualified deferred
compensation plan for a select group of management personnel employed by
OKFC and any subsidiary of OKFC. This plan is intended to be a plan
described in Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
1.2 EFFECTIVE DATE.
The "Effective Date" of this restated plan is January 1, 1990, unless
a provision of this plan specifies a different effective date. Each plan
provision applies until the effective date of an amendment of that
provision.
1.3 APPLICATION TO FORMER PARTICIPANTS.
Except to the extent it amends a provision of the plan which applies
to former Participants or expressly states that it is applicable to former
Participants, an amendment to this plan (including changes included in any
restatement of the plan) shall not apply to a former Participant. If a
former Participant returns to employment with the Employer after the
effective date of an amendment and is designated as eligible to participate
by OKFC, the Participant's rights under the plan shall be determined by the
plan provisions as amended and in effect at that time.
ARTICLE 2
DEFINITIONS
2.1 DEFINED TERMS.
Defined terms are found at the following locations:
<PAGE>
TERM LOCATION
---- --------
Administrator 2.2
Agent for Service of Process 2.3
Beneficiary 2.4
Bonus Compensation 4.3
Diversified Equity Fund 5.4(a)(ii)
Effective Date 1.2
Employee 2.5
Employer 2.6
ERISA 1.1
OKFC 1.1
Old Kent Thrift Plan 2.7
Participant 3.1
Plan Year 2.8
Savings Fund 5.4(a)(i)
Short Term Bond Fund 5.4(a)(iii)
Spouse 2.9
Surviving Spouse 2.10
Valuation Date 2.11
Valuation Period 2.12
2.2 ADMINISTRATOR.
"Administrator" means Old Kent Financial Corporation.
2.3 AGENT FOR SERVICE OF PROCESS.
"Agent for Service of Process" means the Administrator or the
individual designated by the Administrator.
2.4 BENEFICIARY.
"Beneficiary" means the individual, trust or other entity designated
by the Participant to receive any benefits payable under this plan after
the Participant's death. A Participant may designate or change a
Beneficiary by filing a signed designation with the Administrator in the
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<PAGE>
form approved by the Administrator. The Participant's Will is not
effective for this purpose.
If a designation has not been properly completed and filed with the
Administrator or is ineffective for any other reason, the Beneficiary shall
be the Participant's Surviving Spouse. If there is no effective
designation and the Participant does not have a Surviving Spouse, the
remaining benefits, if any, shall be paid to the Participant's estate.
2.5 EMPLOYEE.
"Employee" means an individual employed by the Employer who receives
compensation for personal services performed for the Employer that is
subject to withholding for federal income tax purposes.
2.6 EMPLOYER.
"Employer" means OKFC and any subsidiary of OKFC.
2.7 OLD KENT THRIFT PLAN.
"Old Kent Thrift Plan" means the qualified, tax-exempt defined
contribution plan established and maintained by Old Kent Financial
Corporation under Sections 401(a) and 401(k) of the Internal Revenue Code
of 1986, as amended.
2.8 PLAN YEAR.
"Plan Year" means the 12-month period beginning each January 1.
2.9 SPOUSE.
"Spouse" means the husband or wife to whom the Participant is married
on the date the benefit is scheduled to be paid, or payment is scheduled to
begin. The legal existence of the spousal relationship shall be governed
by the law of the state or other jurisdiction of domicile of the
Participant.
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2.10 SURVIVING SPOUSE.
"Surviving Spouse" means the Spouse of the Participant at the time of
the Participant's death who survives the Participant. If the Participant
and Spouse die under circumstances which prevent ascertainment of the order
of their deaths, it shall be presumed for this plan that the Participant
survived the Spouse.
2.11 VALUATION DATE.
"Valuation Date" means the last day of March, June, September and
December.
2.12 VALUATION PERIOD.
"Valuation Period" means any quarterly period of three months ending
with the specified Valuation Date.
ARTICLE 3
PARTICIPATION
3.1 DESIGNATION AS PARTICIPANT.
Only management or highly compensated Employees shall be eligible to
participate in this plan.
OKFC shall designate the eligible Employees who shall become
Participants ("Participant") and shall specify the date of participation
for each Participant. Each new Participant must complete the deferral and
election requirements specified in Articles 4 and 7.
3.2 TERMINATION OF PARTICIPATION.
A Participant's status as a Participant shall continue until the
earlier of termination of employment or termination of the Participant's
status as a Participant by OKFC. A former Participant may resume
participation in the plan only upon redesignation as a Participant and as
of the date specified by OKFC. Transfer of employment to OKFC or any
subsidiary of OKFC shall not be treated as termination of employment and
participation in this plan shall continue unless the Participant's status
as a Participant is terminated by OKFC.
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ARTICLE 4
BONUS DEFERRALS
4.1 BONUS DEFERRAL.
A Participant may elect to defer payment of all or any portion of
Bonus Compensation for a Plan Year. For each amount deferred, the
Participant shall be credited with a corresponding dollar amount to be paid
under this plan as deferred compensation for the Participant.
4.2 PRIOR IRREVOCABLE ELECTION.
The election to defer Bonus Compensation shall be made by the
Participant on a form provided for that purpose prior to the beginning of
each Plan Year and shall become irrevocable for each Plan Year as of the
beginning of the Plan Year. The deferral shall be applicable to Bonus
Compensation earned in the Plan Year to which the deferral applies and
payable in the following Plan Year. A new Participant may make an initial
irrevocable election to defer Bonus Compensation during the first 30 days
of eligibility to participate and such election shall apply only to Bonus
Compensation earned following the date of the election. If a new
Participant does not make an election during this 30 day period, the
Participant may not make an election for the initial year of participation.
The Participant shall have no claim or right to payment of the amounts
deferred and shall be limited solely to the rights and benefits conferred
under the terms of this plan. In no event shall an election to defer Bonus
Compensation become effective sooner than the date of the written,
irrevocable election or remain effective beyond the end of the Plan Year to
which it applies.
4.3 BONUS COMPENSATION.
"Bonus Compensation" means the amount of the discretionary or
incentive bonus income granted to a Participant for any Plan Year by the
Board of Directors of the Employer.
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<PAGE>
ARTICLE 5
ACCOUNTING; EARNINGS CREDITS
5.1 ACCOUNTING RECORDS.
The Administrator shall maintain separate accounting records for each
Participant. An accounting record shall be maintained for and credited
with the Participant's bonus deferrals plus the earnings credits on the
bonus deferrals described below.
5.2 TIMING OF DEFERRALS.
Bonus deferrals shall be credited to the Participant's account as of
the beginning of the Valuation Period in which the Bonus Compensation would
have been payable to the Participant if the Participant had not made a
deferral election.
5.3 EARNINGS CREDITS AND DEBITS.
The amount credited to a Participant's account (including prior
earnings credits) as of the beginning of each Valuation Period also shall
be credited with an earnings credit or debit for such Valuation Period.
The amount of the earnings credit shall be an adjustment on the Valuation
Date equal to the increase or decrease which would have occurred if the
value of the account as of the beginning of the Valuation Period reduced by
the amount of any distribution during the Valuation Period had been
invested in the fund at the beginning of the Valuation Period and withdrawn
on the Valuation Date. For this purpose fund means the fund (or funds)
chosen by the Participant to be the investment reference pursuant to
Section 5.4.
Earnings credits shall continue to accrue after a Participant's
employment has terminated and until all amounts due hereunder have been
paid in full. Earnings credits shall not apply to amounts paid during a
Valuation Period.
5.4 FUNDS.
Effective January 1, 1991, earnings credits shall be measured and
determined under the following rules:
(a) CHOICES. Each Participant may direct that the Participant's
accounts be treated as if invested in one or more of the following funds:
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<PAGE>
(i) SAVINGS FUND. The "Savings Fund" which consists of
investments similar to those in the savings fund offered in the Old Kent
Thrift Plan.
(ii) DIVERSIFIED EQUITY FUND. The "Diversified Equity Fund"
which consists of investment units in a fund similar to the diversified
equity fund offered in the Old Kent Thrift Plan.
(iii) SHORT TERM BOND FUND. The "Short Term Bond Fund" which
consists of investments similar to those in the short term bond fund
offered in the Old Kent Thrift Plan.
(b) FREQUENCY. A Participant may change a direction with respect to
existing account balances and with respect to future deferrals as of the
first day of a Valuation Period. Any change in the investment reference by
the Participant shall be effective not earlier than the first day of the
next Valuation Period following the date on which the change is made.
(c) WRITTEN DIRECTION. The direction shall be made by the
Participant on a form provided for that purpose at least 30 days prior to
the first day of the Valuation Period. A direction shall be effective on
the first day of the next Valuation Period only when signed by the
Participant and filed with the Administrator, and the direction shall
continue to be in effect until it is revoked or modified in the same
manner.
(d) NO WRITTEN DIRECTION. In the absence of written direction by a
Participant, the Savings Fund shall be used as the investment reference for
the Participant's account under this plan.
(e) ADDITIONAL TERMS AND CONDITIONS. The Administrator may formulate
additional terms and conditions for direction by the Participant as
necessary or appropriate.
ARTICLE 6
VESTING
The right to be paid an amount equal to the bonus deferrals in the
Participant's account, including earnings credits in the account, shall not
be subject to forfeiture for any reason.
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<PAGE>
ARTICLE 7
PAYMENTS TO PARTICIPANTS
7.1 EVENT OF DISTRIBUTION.
If the Participant's employment terminates for any reason, all amounts
credited to the Participant shall be distributed at the time and in the
manner specified herein. A transfer of employment to OKFC or any
subsidiary of OKFC is not a termination of employment.
7.2 FORM OF PAYMENT.
At the time of the initial irrevocable election to defer Bonus
Compensation under this plan, each Participant shall irrevocably elect a
form of payment. The following forms of payment may be elected by a
Participant:
(a) LUMP SUM. A single lump-sum payment of the entire amount
promised under this plan, or
(b) INSTALLMENTS. Payment of the entire amount promised under this
plan in not more than 10 annual installments.
If the total amount to be distributed does not exceed $3,500, the
Participant shall be paid a lump-sum payment under (a) above.
If the Participant fails to make an election of a form of payment in
the initial election, the Participant shall be paid a lump-sum payment.
7.3 AMOUNT OF PAYMENT.
The Participant shall be paid an amount which is the sum of the bonus
deferrals in the Participant's account plus the earnings credits in the
Participant's account. The amount to be distributed shall be determined as
follows:
(a) LUMP SUM. For a lump sum distribution, the total amount to be
distributed shall be determined as of the Valuation Date preceding the date
of payment.
(b) INSTALLMENTS. If payment is in installments, the initial amount
to be distributed shall be the total amount due as of the most recent
Valuation Date preceding the initial payment divided by the number of
installment payments elected. Future installments shall be determined by
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<PAGE>
dividing the total amount remaining unpaid as of the most recent Valuation
Date preceding the date of payment by the remaining number of annual
installment payments.
With respect to a lump-sum payment or each installment payment, there
shall be no earnings credit or other adjustment, for the period from the
Valuation Date preceding the date of payment to the date of payment.
7.4 MANNER OF PAYMENT.
Payments shall be paid wholly in cash directly by the Employer or
indirectly through a grantor trust (owned or maintained by the Employer) to
the Participant or the Participant's Beneficiary. If a trust is
established, the Employer shall not be relieved of its obligation and
liability to pay the benefits of this plan except to the extent payments
are actually made from the trust.
7.5 TIME OF PAYMENT.
A lump-sum payment or an initial installment payment shall be made on
March 1 following the end of the calendar year in which the Participant's
employment terminates. Later installment payments shall be made on March 1
following the end of each subsequent calendar year until the total amount
to be distributed under this plan is distributed.
7.6 DEATH.
(a) PAYMENT TO BENEFICIARY. If the Participant dies prior to payment
of all amounts due under this plan, payment of all remaining amounts shall
be made to the Participant's Beneficiary. Payments to a Beneficiary
following a Participant's death shall be in the form elected by the
Participant and shall be made or shall begin on the date specified in
Section 7.5. At the time of the initial irrevocable election to defer Bonus
Compensation under this plan, the Participant may designate a form of
payment following the Participant's death which is different from the form
of payment during the Participant's lifetime.
(b) PAYMENT TO ESTATE. If payment is to be made to the estate of a
Participant, payment shall be made in a lump sum 90 days after the date of
the Participant's death.
(c) GENERATION-SKIPPING TRANSFER TAX. Notwithstanding any other
provision in this plan or any related trust agreement, OKFC may withhold or
direct the trustee to withhold any benefits payable to a Beneficiary as a
result of the death of a Participant or any other Beneficiary until it can
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<PAGE>
be determined whether a generation-skipping transfer tax, as defined in
Chapter 13 of the Code, or any substitute provision therefor, is payable by
OKFC or the trustee and the amount of generation-skipping transfer tax,
including interest, that is due. If such tax is payable, the benefits
otherwise payable hereunder shall be reduced by an amount equal to the
generation-skipping transfer tax and interest. Any benefits withheld shall
be payable as soon as there is a final determination of the applicable
generation-skipping transfer tax and interest. No interest shall be
payable to any Beneficiary for the period from the date of death to the
time when the amount of benefits payable to a Beneficiary can be fully
determined pursuant to this paragraph.
ARTICLE 8
GENERAL PROVISIONS
8.1 AMENDMENT; TERMINATION.
Old Kent Financial Corporation reserves the right to amend this plan
prospectively or retroactively, or to terminate this plan, provided that an
amendment or termination may not reduce or revoke the accrued amounts
promised to be paid to Participants as of the later of the date of adoption
of the amendment or the effective date of the amendment or termination.
Upon termination of this plan, the accounts of affected Participants
shall be administered and distributed in accordance with the provisions of
this plan.
8.2 EMPLOYMENT RELATIONSHIP.
Nothing in this plan shall be construed as creating a contract of
employment between the Employer and any Participant or otherwise conferring
upon any Participant or other person a legal right to continuation of
employment or any rights other than those specified herein. This plan
shall not limit or affect the right of the Employer to discharge or retire
a Participant.
8.3 RIGHTS NOT ASSIGNABLE.
Except for designation of a Beneficiary, amounts promised hereunder
shall not be subject to assignment, conveyance, transfer, anticipation,
pledge, alienation, sale, encumbrance, or charge, whether voluntary or
involuntary, by the Participant or any Beneficiary of the Participant, even
if directed under a qualified domestic relations order or other divorce
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<PAGE>
order. An interest in an amount promised shall not provide collateral or
security for a debt of a Participant or Beneficiary or be subject to
garnishment, execution, assignment, levy, or to another form of judicial or
administrative process or to the claim of a creditor of a Participant or
Beneficiary, through legal process or otherwise. Any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or
to otherwise dispose of benefits payable, before actual receipt of the
benefits, or a right to receive benefits, shall be void and shall not be
recognized.
8.4 UNSECURED CREDITOR STATUS.
A Participant shall be an unsecured general creditor of the Employer
as to the payment of any benefit under this plan. The right of any
Participant or Beneficiary to be paid the amount promised in this plan
shall be no greater than the right of any other general, unsecured creditor
of the Employer.
8.5 NO TRUST OR FIDUCIARY RELATIONSHIP.
Nothing contained in this plan shall be deemed to create a trust or
fiduciary relationship of any kind for the benefit of any Participant or
Beneficiary.
8.6 CONSTRUCTION.
The singular includes the plural, and the plural includes the
singular, unless the context clearly indicates the contrary. Capitalized
terms (except those at the beginning of a sentence or part of a heading)
have the meaning specified in this plan. If a capitalized term is not
defined in this plan, the term shall have the general, accepted meaning of
the term.
8.7 UNFUNDED PLAN.
This shall be an unfunded plan within the meaning of ERISA. Benefits
provided herein constitute only an unsecured contractual promise to pay in
accordance with the terms of this plan by the Employer.
Rev. 1/14/91
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<PAGE>
- ---------------------------------------------------------------------------
OLD KENT FINANCIAL CORPORATION
DEFERRED COMPENSATION TRUST
TRUST AGREEMENT
Between
OLD KENT FINANCIAL CORPORATION
And
OLD KENT BANK AND TRUST COMPANY
- ---------------------------------------------------------------------------
<PAGE>
OLD KENT FINANCIAL CORPORATION
DEFERRED COMPENSATION TRUST
TABLE OF CONTENTS
PAGE
----
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I - Effective Date; Duration . . . . . . . . . . . . . . . . . . .2
1.1 Effective Date and Trust Year. . . . . . . . . . . . . . . . . .2
1.2 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Irrevocability . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II - Trust Fund and Funding Policy . . . . . . . . . . . . . . . .3
2.1 Contributions. . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.3 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.4 Substitution of Other Property . . . . . . . . . . . . . . . . .4
2.5 Administrative Powers of Trustee . . . . . . . . . . . . . . . .5
ARTICLE III - Administration . . . . . . . . . . . . . . . . . . . . . . .7
3.1 Company Representatives. . . . . . . . . . . . . . . . . . . . .7
3.2 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . . .8
3.3 Disputed Claims. . . . . . . . . . . . . . . . . . . . . . . . .8
3.4 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.5 Accountings. . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.6 Expenses and Fees. . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE IV - Liability . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.1 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.2 Bonding. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
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<PAGE>
PAGE
----
ARTICLE V - Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Determination of Insolvency. . . . . . . . . . . . . . . . . . 10
5.2 Insolvency Administration. . . . . . . . . . . . . . . . . . . 10
5.3 Termination of Insolvency Administration . . . . . . . . . . . 11
5.4 Creditors' Claims During Solvency. . . . . . . . . . . . . . . 11
ARTICLE VI - Successor Trustees. . . . . . . . . . . . . . . . . . . . . 12
6.1 Resignation and Removal. . . . . . . . . . . . . . . . . . . . 12
6.2 Appointment of Successor . . . . . . . . . . . . . . . . . . . 12
6.3 Accountings; Continuity. . . . . . . . . . . . . . . . . . . . 12
ARTICLE VII - General Provisions . . . . . . . . . . . . . . . . . . . . 13
7.1 Interests Not Assignable . . . . . . . . . . . . . . . . . . . 13
7.2 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.3 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 13
7.4 Agreement Binding on All Parties . . . . . . . . . . . . . . . 14
7.5 Notices and Directions . . . . . . . . . . . . . . . . . . . . 14
7.6 No Implied Duties. . . . . . . . . . . . . . . . . . . . . . . 14
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<PAGE>
TRUST AGREEMENT FOR
OLD KENT FINANCIAL CORPORATION
DEFERRED COMPENSATION TRUST
This Trust Agreement is made this _________ day of _________
___________, 1991, between OLD KENT FINANCIAL CORPORATION, a Michigan
corporation ("OKFC"), and OLD KENT BANK AND TRUST COMPANY (the "Trustee").
OKFC hereby establishes the trust to hold all money and other
property, together with the income thereon, paid or transferred to the
trust under this Trust Agreement. The Trustee accepts the trust and agrees
to hold in trust all money and other property transferred to it hereunder
for the uses and purposes set forth herein, and the Trustee agrees to
discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
INTRODUCTION
OKFC has adopted the Old Kent Deferred Compensation Plan (the
"Plan") for the benefit of selected executive officers that comprise
management and highly compensated employees.
The purpose of this trust is to give Plan participants greater
security by placing assets in trust to pay benefits under the Plan, unless
OKFC or a subsidiary of OKFC that employs one or more participants in the
Plan becomes insolvent, in which case the assets will be used to pay
creditors of the insolvent corporation. OKFC shall be liable to
participants to make all payments required under the Plan to the extent
that such payments are not made from this trust. Distributions made from
this trust to participants or their beneficiaries shall, to the extent of
such distributions, satisfy OKFC's obligations to pay benefits under the
Plan.
OKFC and the Trustee agree that the trust has been established to
pay obligations of OKFC pursuant to the Plan and, upon insolvency, is
subject to the rights of general creditors of OKFC. The trust is intended
to be a grantor trust under the provisions of Sections 671 through 677 of
the Internal Revenue Code of 1986 as amended (the "Code"). OKFC agrees to
report all items of income and deduction of the trust on its income tax
returns. OKFC shall have no right to any distributions from the trust or
any claim against the trust for funds necessary to pay any income taxes
that OKFC is required to pay. No contribution to or income of the trust is
intended to be taxable to Plan participants until benefits are distributed
to them.
The Plan is intended to be "unfunded" as described in Parts 2
through 4 of Subtitle B of Title 1 of the Employee Retirement Income
<PAGE>
Security Act of 1974, as amended ("ERISA") and maintained primarily for the
purpose of providing deferred compensation for a select group of management
and highly compensated employees.
ARTICLE I
EFFECTIVE DATE; DURATION
1.1 EFFECTIVE DATE AND TRUST YEAR.
This trust shall become effective when the Trust Agreement has
been executed by OKFC and the Trustee, and OKFC has made a contribution to
the trust. The trust year shall coincide with OKFC's fiscal year. OKFC
shall report any change in its fiscal year to the Trustee.
1.2 DURATION.
(a) This trust shall continue in effect until all assets of the trust
fund are exhausted through distribution of benefits to participants,
payment to general creditors in the event of insolvency, payment of fees
and expenses of the Trustee, and return of remaining funds to OKFC pursuant
to Section 1.3.
(b) The Trustee may make payments before they would otherwise be due
if, based on a change in the federal tax or revenue laws, a published
ruling, or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court
of competent jurisdiction involving a participant or a beneficiary, or a
closing agreement made under Section 7121 of the Code that is approved by
the Internal Revenue Service and involves a participant, it is determined
that a participant has or will recognize income for federal income tax
purposes with respect to amounts that are or will be payable under the Plan
before they are to be paid.
1.3 IRREVOCABILITY.
This trust shall become irrevocable upon the issuance by the
Internal Revenue Service of a private letter ruling establishing that it is
unfunded for purposes of the Code. If such a ruling is denied, OKFC may
revoke the trust and take possession of all assets held by the Trustee for
the trust. This trust also shall become irrevocable if such a ruling is
not requested by OKFC within 90 days after the date of establishing this
trust.
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<PAGE>
Except as provided in Section 1.2, the trust shall be irrevocable
with respect to amounts contributed to it, including income attributable to
such contributions, until all benefit rights under the Plan for
participants who are covered by this trust are satisfied. The Trustee
shall then return to OKFC any assets remaining in the trust.
ARTICLE II
TRUST FUND AND FUNDING POLICY
2.1 CONTRIBUTIONS.
(a) OKFC may contribute to the trust such amounts as shall be
reasonably necessary to provide for the payment of all account balances
accrued under the Plan to participants covered by this trust. The time of
payment of contributions shall be decided by OKFC. Contributions may be in
cash or in kind.
(b) The Trustee shall accept the contributions made by OKFC and shall
hold them as a trust fund for the payment of benefits under the Plan. The
Trustee shall not be responsible for the adequacy of the trust fund to pay
all account balances accrued under the Plan.
2.2 INVESTMENTS.
The Trustee shall invest and reinvest the assets of the trust as
the Trustee, in its sole discretion, may deem appropriate, including,
without limitation, improved and unimproved real property (whether or not
income producing); common and preferred stocks; shares or certificates of
participation issued by investment companies; investment trusts and mutual
funds; common or pooled investment funds; bonds; debentures; mortgages;
deeds of trust; insurance and annuity contracts; notes secured by real or
personal property; leases; ground leases; limited partnership interests;
real or personal property interests owned, developed or managed by joint
ventures or limited partnerships; obligations of governmental bodies, both
domestic and foreign; notes, commercial paper, certificates of deposit, and
other securities or evidences of indebtedness, secured or unsecured,
including variable amount notes, convertible securities of all types and
kinds, interest-bearing savings or deposit accounts with any federally
insured bank (including the Trustee) or any federally insured savings and
loan association; and any other property permitted as trust investments
under applicable law. The Trustee is authorized to invest in any common or
pooled investment fund or mutual fund now or hereafter maintained by the
Trustee and any interest-bearing savings or deposit accounts with the
banking department of the Trustee.
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<PAGE>
2.3 ACCOUNTS.
(a) The Trustee shall establish a separate account for each Plan
participant who is covered by this trust, to which it shall credit
contributions for that participant. The account shall be a bookkeeping
account only, shall reflect an undivided interest in assets of the trust
fund and shall not require any segregation of particular assets. OKFC
shall direct the Trustee with respect to the allocation of assets of the
trust fund among the separate accounts. With respect to any new
contributions to the trust by OKFC after separate accounts have been
established, OKFC shall designate each Plan participant for whom such
contributions are made. If the Trustee does not receive a valid direction
with respect to the allocation of assets of the trust fund among separate
accounts or does not receive a valid direction with respect to the
participants for whom new contributions are made within a reasonable time
after such accounts are established or such contributions are received, the
unallocated assets shall be allocated and new contributions shall be
credited in proportion to the account balances of the participants entitled
thereto. The Trustee shall have no duty to inquire whether any of the
foregoing allocations of assets of the trust fund or contributions to the
trust are made in compliance with the terms of the Plan. After separate
accounts are established, assets allocated to an account for one Plan
participant may not be utilized to provide benefits for any other
participants until all benefits for such participant have been paid in
full.
(b) The Trustee shall allocate investment earnings and losses of the
trust fund among the accounts in proportion to their balances, except that
changes in the value of insurance and annuity contracts shall be allocated
to the account or accounts for which they are held. Payments to general
creditors during Insolvency Administration under Section 5.2 shall be
charged against the accounts in proportion to their account balances,
except that payment of benefits to a Plan participant as a general creditor
shall be charged against the account for that participant.
(c) OKFC and the Trustee may agree that the accounts under this
Section 2.3 shall be maintained by the Plan Administrator, or such other
person as may be designated by the Plan Administrator, rather than the
Trustee.
2.4 SUBSTITUTION OF OTHER PROPERTY.
(a) In the event that any contributions to the trust are made in kind
as provided in Section 2.1(a), OKFC shall have the power to reacquire part
or all of the trust fund consisting of such contributions at any time, by
substituting other readily marketable property of equivalent value, net of
any costs of disposition. Such power is exercisable in a non-fiduciary
capacity and may be exercised without the approval or consent of
participants or any other person.
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<PAGE>
(b) The value of all assets in the trust fund shall be fair market
value. Values shall be determined by the Trustee and may be based on the
determination of Experts, as described in Section 2.5(b).
2.5 ADMINISTRATIVE POWERS OF TRUSTEE.
(a) Subject in all respects to applicable provisions of this Trust
Agreement and the Plan, including limitations on investment of the trust
fund, the Trustee shall have the rights, powers and privileges of an
absolute owner when dealing with property of the trust, including, without
limitation, the powers listed below:
(1) To sell, convey, transfer, exchange, partition, lease, and
otherwise dispose of any of the assets of the trust at any time held by the
Trustee under this Trust Agreement;
(2) To exercise any option, conversion privilege or subscription
right given the Trustee as the owner of any security held in the trust; to
vote any corporate stock either in person or by proxy, with or without
power of substitution; to consent to or oppose any reorganization,
consolidation, merger, readjustment of financial structure, sale, lease or
other disposition of the assets of any corporation or other organization,
the securities of which may be an asset of the trust; and to take any
action in connection therewith and receive and retain any securities
resulting therefrom;
(3) To deposit any security with any protective or
reorganization committee, and to delegate to such committee such power and
authority with respect thereto as the Trustee may deem proper, and to agree
to pay out of the trust such portion of the expenses and compensation of
such committee as the Trustee, in its discretion, shall deem appropriate;
(4) To cause any property of the trust to be issued, held or
registered in the name of the Trustee as trustee, or in the name of one or
more of its nominees, or one or more nominees of any system for the central
handling of securities, or in such form that title will pass by delivery,
provided that the records of the Trustee shall in all events indicate the
true ownership of such property;
(5) To renew or extend the time of payment of any obligation due
or to become due;
(6) To commence or defend lawsuits or legal or administrative
proceedings; to compromise, arbitrate or settle claims, debts or damages in
favor of or against the trust; to deliver or accept, in either total or
partial satisfaction of any indebtedness or other obligation, any property;
to continue to hold for such period of time as the Trustee may deem
appropriate any property so received; and to pay all costs and reasonable
attorney fees in connection therewith out of the assets of the trust;
-5-
<PAGE>
(7) To grant options to purchase or to acquire options to
purchase any real property;
(8) To foreclose any obligation by judicial proceeding or
otherwise;
(9) To manage any real property in the trust in the same manner
as if the Trustee were the absolute owner thereof, including the power to
lease the same for such term or terms within or beyond the existence of the
trust and upon such conditions, including (but not by way of limitation)
agreements for the purchase or disposal of buildings thereon and options to
the tenant to renew such lease from time to time, or to purchase such
property, as the Trustee may deem proper;
(10) To borrow money from any person in such amounts, upon such
terms and for such purposes as the Trustee, in its discretion, may deem
appropriate; and in connection therewith, to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust assets
as security; and to lend money on a secured or unsecured basis to any
person other than a party in interest;
(11) To appoint one or more persons or entities as agents or
custodians to act as ancillary trustees or sub-trustees for the purpose of
investing in and holding title to real or personal property or any interest
therein located outside the State of Michigan; provided that any such
ancillary trustee or sub-trustee shall act with such power, authority,
discretion, duties, and functions of the Trustee as shall be specified in
the instrument establishing such ancillary or sub-trust, including, without
limitation, the power to receive, hold and manage property, real or
personal, or undivided interests therein; and the Trustee may pay the
reasonable expenses and compensation of such ancillary trustees or sub-
trustees out of the trust;
(12) To deposit any securities held in the trust with a
securities depository;
(13) To retain in money market funds or other daily interest,
daily availability funds and investment cash so much of the trust assets as
the Trustee deems advisable;
(14) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of the Trustee shall be final and not subject to question by any
participant or beneficiary of the trust; and
(15) Generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the
orderly administration or protection of the trust fund.
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<PAGE>
Notwithstanding the foregoing or any other language in this Trust
Agreement, the Trustee shall not have the power to start, enter into, or
otherwise engage in any business enterprise, or continue to operate any
business interest that becomes part of the trust estate, if such activity
constitutes "carrying on business" as referred to in Section 301.7701-2 of
the Procedure and Administration Regulations under the Internal Revenue
Code of 1986, as amended.
(b) The Trustee may engage one or more independent attorneys,
accountants, actuaries, appraisers or other experts (an "Expert") for any
purpose, including the determination of disputed claims pursuant to Section
3.3. The determination of an Expert shall be final and binding on OKFC,
the Trustee, and all of the participants unless within 30 days after
receiving a determination deemed by any participant to be adverse, the
participant initiates suit in a court of competent jurisdiction seeking
appropriate relief. The Trustee shall have no duty to oversee or
independently evaluate the determination of the Expert. The Trustee shall
be authorized to pay the fees and expenses of any Expert out of the assets
of the trust fund.
(c) OKFC shall from time to time pay taxes (including interest and
applicable penalties) of any and all kinds whatsoever that at any time are
lawfully levied or assessed upon or become payable in respect of the trust
fund, the income or any property forming a part thereof, or any security
transaction pertaining thereto. To the extent that any taxes levied or
assessed upon the trust fund are not paid by OKFC or contested by OKFC
pursuant to the last sentence of this paragraph, the Trustee shall pay such
taxes out of the trust fund, and OKFC may, in its discretion, deposit into
the trust fund an amount equal to the amount paid from the trust fund to
satisfy such tax liability. If requested by OKFC, the Trustee shall, at
OKFC's expense, contest the validity of such taxes in any manner deemed
appropriate by OKFC or its counsel, but only if it has received an
indemnity bond or other security satisfactory to it to pay any expenses of
such contest. Alternatively, OKFC may itself contest the validity of any
such taxes.
ARTICLE III
ADMINISTRATION
3.1 COMPANY REPRESENTATIVES.
(a) OKFC is the Plan Administrator for the Plan and has general
responsibility to interpret the Plan and determine the rights of
participants and beneficiaries.
(b) The Trustee shall be given the names and specimen signatures of
OKFC representatives authorized to take action with regard to the
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administration of the Plan and this trust. The Trustee shall accept and
rely upon the names and signatures until notified of any change.
Instructions to the Trustee shall be signed for OKFC by any such
representative(s) as OKFC may designate.
3.2 PAYMENT OF BENEFITS.
(a) The Trustee shall pay benefits to participants and beneficiaries
on behalf of OKFC in satisfaction of OKFC's obligations under the Plan or
shall reimburse OKFC for payments made directly by OKFC in satisfaction of
its obligations under the Plan. Benefit payments from an account, or
reimbursements therefor, shall be made until the assets of the account are
exhausted. OKFC's obligation shall not be limited to the trust fund, and a
participant shall have a claim against OKFC for any payment not made by the
Trustee.
(b) The Trustee shall make payments in accordance with written
directions from OKFC. To the extent that the Trustee makes payments to
participants and beneficiaries as directed by OKFC, the Trustee shall make
any required income tax withholding and shall pay amounts withheld to
taxing authorities on OKFC's behalf or determine that such amounts have
been paid by OKFC.
(c) A participant's entitlement to benefits under the Plan shall be
determined by OKFC. Any claim for such benefits shall be considered and
reviewed under the claims procedures established for the Plan.
3.3 DISPUTED CLAIMS.
A claim with respect to eligibility to participate in the Plan,
eligibility for a benefit, the amount of a benefit or any other matter
relating to a particular participant or beneficiary shall be made to the
Plan Administrator in accordance with the terms of the Plan. The
determination by the Plan Administrator with respect to such claims shall
be binding upon the Trustee. The Trustee shall have no obligation to
determine any claim presented to it and may file suit to have such matter
resolved in a court of competent jurisdiction. All of the Trustee's
expenses in the court proceeding, including attorney fees, shall be allowed
as administrative expenses of the trust.
3.4 RECORDS.
The Trustee shall keep complete records on the trust fund open to
inspection by OKFC at all reasonable times. In addition to accountings
required below, the Trustee shall furnish to OKFC any information requested
about the trust fund.
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3.5 ACCOUNTINGS.
(a) The Trustee shall furnish OKFC with a complete accounting of the
trust fund annually as soon as reasonably practicable after the end of the
trust year showing assets and liabilities and income and expense for the
year. The form and content of the accounting shall be sufficient for OKFC
to include in computing its taxable income the income, deductions and
credits against taxes that are attributable to the trust fund.
(b) OKFC may object to an accounting within 180 days after it is
furnished and require that it be settled by audit by a qualified,
independent certified public accountant. The auditor shall be chosen by
the Trustee from a list of at least three such accountants furnished by
OKFC at the time the audit is requested. Either OKFC or the Trustee may
require that the account be settled by a court of competent jurisdiction,
in lieu of or in conjunction with the audit. All expenses of any audit or
court proceedings, including reasonable attorney fees, shall be allowed as
administrative expenses of the trust.
(c) If OKFC does not object to an accounting within the time
provided, the account shall be settled for the period covered by it. When
an account is settled, it shall be final and binding on all parties,
including all participants and persons claiming through them.
3.6 EXPENSES AND FEES.
(a) The Trustee shall be reimbursed for all expenses and shall be
paid a reasonable fee fixed by agreement with OKFC from time to time. No
increase in the fee shall be effective before 60 days after the Trustee
gives notice to OKFC of the increase. The Trustee shall notify OKFC
periodically of expenses and fees.
(b) OKFC shall pay administrative fees and expenses. If not so
paid, the fees and expenses shall be paid from the trust fund. OKFC may
reimburse the trust fund for any fees and expenses paid out of it.
ARTICLE IV
LIABILITY
4.1 INDEMNITY.
Subject to such limitations as may be imposed by applicable law,
OKFC shall indemnify and hold harmless the Trustee from any claims, loss,
liability, or expense arising from any action or inaction in administration
of this trust based on direction or information from either OKFC, or any
Expert, absent willful misconduct or bad faith.
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4.2 BONDING.
The Trustee need not give any bond or other security for
performance of its duties under this trust.
ARTICLE V
INSOLVENCY
5.1 DETERMINATION OF INSOLVENCY.
(a) For purposes of this trust, an entity is Insolvent if it is
unable to pay its debts as they come due or it is the subject of a pending
proceeding as a debtor under the federal Bankruptcy Code (or any successor
federal statute).
(b) If OKFC or any subsidiary of OKFC that employs one or more
participants in the Plan (individually a "Participating Employer") becomes
Insolvent, the Chief Executive Officer and the Board of Directors of the
Participating Employer shall notify the Trustee that the corporation is
Insolvent. If the Trustee receives such notice or receives from any other
person claiming to be a creditor of the Participating Employer a written
allegation that the Participating Employer is Insolvent, the Trustee shall
commence Insolvency Administration under Section 5.2 and shall
independently determine whether such insolvency exists. The expenses of
such determination shall be allowed as administrative expenses of the
trust.
(c) Payments from the trust fund to participants under the Plan shall
cease and the Trustee shall commence Insolvency Administration under
Section 5.2 upon the earlier of:
(1) Receipt of a notice or allegation of insolvency under
Section 5.1(b); or
(2) A determination by the Trustee or a court of competent
jurisdiction that the Participating Employer is Insolvent.
(d) The Trustee shall have no obligation to investigate the financial
condition of the Participating Employer prior to receiving a notice or
allegation of insolvency under Section 5.1(b).
5.2 INSOLVENCY ADMINISTRATION.
(a) During Insolvency Administration, the Trustee shall hold the
trust fund for the benefit of the general creditors of the Participating
Employer and make payments only in accordance with Section 5.2(b). The Plan
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participants and beneficiaries shall have no greater rights than general
creditors of the Participating Employer. The Trustee shall continue the
investment of the trust fund in accordance with Section 2.2.
(b) The Trustee shall make payments out of the trust fund in one or
more of the following ways:
(1) To general creditors in accordance with instructions from a
court, or a person appointed by a court, having jurisdiction over the
Participating Employer's condition of insolvency;
(2) To Plan participants and beneficiaries in accordance with
such instructions; and
(3) In payment of its own fees or expenses.
5.3 TERMINATION OF INSOLVENCY ADMINISTRATION.
(a) Insolvency Administration shall terminate when the Trustee
determines that the Participating Employer:
(1) Is not Insolvent;
(2) Has ceased to be Insolvent; or
(3) Has been determined by a court of competent jurisdiction not
to be Insolvent or to have ceased to be Insolvent.
(b) Upon termination of Insolvency Administration under Section
5.3(a), the trust fund shall continue to be held for the benefit of the
participants in the Plan. Benefit payments due during the period of
Insolvency Administration shall be made as soon as practicable, together
with interest from the due dates at a rate equal to the interest rate fixed
by the Pension Benefit Guaranty Corporation for valuing immediate annuities
in the preceding month.
5.4 CREDITORS' CLAIMS DURING SOLVENCY.
(a) During periods of Solvency the Trustee shall hold the trust fund
exclusively to pay Plan benefits and fees and expenses of the trust until
all Plan benefits have been paid. Creditors of the Participating Employer
shall not be paid from the trust fund during Solvency, and the trust fund
may not be seized by or subjected to the claims of such creditors in any
way.
(b) A period of Solvency is any period not covered by Section 5.2.
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ARTICLE VI
SUCCESSOR TRUSTEES
6.1 RESIGNATION AND REMOVAL.
(a) The Trustee may resign at any time by notice to OKFC, which shall
be effective in 60 days unless OKFC and the Trustee agree otherwise.
(b) The Trustee may be removed by OKFC on 60 days' notice or shorter
notice accepted by the Trustee.
(c) When resignation or removal is effective, the Trustee shall begin
transfer of assets to the successor Trustee immediately. The transfer
shall be completed within 60 days, unless OKFC extends the time limit.
(d) If the Trustee resigns or is removed, OKFC shall appoint a
successor by the effective date of resignation or removal under Sections
6.1(a) or (b). If no such appointment has been made, the Trustee may apply
to a court of competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the trust.
6.2 APPOINTMENT OF SUCCESSOR.
(a) OKFC may appoint any national or state bank or trust company as
a successor to replace the Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee,
which shall have all of the rights and powers of the former Trustee,
including ownership rights in the trust assets. The former Trustee shall
execute any instruments necessary or reasonably requested by OKFC or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing trust assets,
subject to Article II. The successor Trustee shall not be responsible for,
and OKFC shall indemnify and hold harmless the successor Trustee from any
claim or liability because of, any action or inaction of any prior Trustee
or any other past event, any existing condition or any existing assets.
6.3 ACCOUNTINGS; CONTINUITY.
(a) A Trustee who resigns or is removed shall submit a final
accounting to OKFC as soon as practicable. The accounting shall be
received and settled as provided in Section 3.5 for regular accountings.
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(b) No resignation or removal of the Trustee or change in identity of
the Trustee for any reason shall cause a termination of the Plan or this
trust.
ARTICLE VII
GENERAL PROVISIONS
7.1 INTERESTS NOT ASSIGNABLE.
(a) The interest of a participant in the trust fund may not be
assigned, seized by legal process, transferred, or subjected to the claims
of the participant's creditors in any way. An attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise
dispose of promised benefits or the right to receive promised benefits,
before actual receipt of the benefits, shall be void and shall not be
recognized.
(b) Neither OKFC nor any other Participating Employer may create a
security interest in the trust fund in favor of any of its creditors. The
Trustee shall not make payments from the trust fund of any amounts to
creditors of OKFC who are not Plan participants, except as provided in
Section 5.2.
(c) The participants shall have no interest in the assets of the
trust fund beyond the right to receive payment of Plan benefits from such
assets outside periods of Insolvency Administration under Section 5.2.
During Insolvency Administration the participants' rights to trust assets
shall not be superior to those of any other general creditors of the
Participating Employer.
7.2 AMENDMENT.
Except as provided in Sections 1.2 and 1.3, no amendment shall
alter or reduce the rights of Plan participants in the Plan, increase the
rights of other general creditors in the assets of the trust fund, or cause
this Trust Agreement or the trust to be revoked and terminated or to become
revocable. The duties and powers of the Trustee shall not be increased
without the Trustee's written consent.
7.3 APPLICABLE LAW.
This Trust shall be governed, construed and administered
according to the laws of the State of Michigan, except as preempted by
ERISA.
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7.4 AGREEMENT BINDING ON ALL PARTIES.
This Trust Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of any and all present and future
parties and Plan participants.
7.5 NOTICES AND DIRECTIONS.
Any notice or direction under this trust shall be in writing and
shall be effective when actually delivered, or if mailed, when deposited
postpaid as first-class mail. Mail to a party shall be directed to the
address stated below or to such other address as either party may specify
by notice to the other party. Until notice is given to the contrary,
notices to OKFC and the Trustee shall be addressed as follows:
If to OKFC:
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Attention: Director of Human Resources
If to the Trustee:
Old Kent Bank and Trust Company
200 Monroe, N.W.
Suite 430
Grand Rapids, Michigan 49503
Attention: Corporate Trust Services
7.6 NO IMPLIED DUTIES.
The duties of the Trustee shall be those stated in this trust,
and no other duties shall be implied.
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IN WITNESS WHEREOF, OKFC and the Trustee have caused this Trust
Agreement to be executed by their respective duly authorized officers on
the date first written above.
OLD KENT FINANCIAL CORPORATION
By: ____________________________________
Its _______________________________
"OKFC"
OLD KENT BANK AND TRUST COMPANY
By: ____________________________________
Its _______________________________
"Trustee"
Rev. 1/17/91
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EXHIBIT 10.15
AMENDMENT TO DIRECTORS' DEFERRED
COMPENSATION PLAN
OLD KENT FINANCIAL CORPORATION
RESOLUTIONS OF THE BOARD OF DIRECTORS
February 16, 1998
DEFERRED PAYMENT OF ANNUAL RETAINER;
AMENDMENT OF DIRECTORS'
DEFERRED COMPENSATION PLAN
WHEREAS, the Committee on Directors has recommended that one-half
of the annual retainer paid to the directors of this corporation be paid as
deferred compensation and treated as invested in common stock of this
corporation for the period from the time when earned until paid; and
WHEREAS, implementation of the recommendation of the Committee on
Directors requires amendment of the Directors' Deferred Compensation Plan
("Directors' Plan");
IT IS THEREFORE RESOLVED, effective April 1, 1998, that one-half
of the annual retainer payable for service as a director of this
corporation (excluding any additional annual retainer for service as a
committee chairperson) shall be paid as deferred compensation in the form
of annual retainer credits in accordance with the terms of the Directors'
Plan as amended;
FURTHER RESOLVED, that the Directors' Plan shall be amended
effective April 1, 1998, as follows:
A. To provide for annual retainer credits of one-half of each
eligible director's annual retainer for service as a director of
this corporation each year;
B. To provide that the annual retainer credits of each director
will be treated at all times under the plan as if invested in
common stock of this corporation;
C. To provide that annual retainer credits under the plan will
be combined with all other deferral credits for purposes of
distribution;
<PAGE>
D. To provide as a transition rule for 1998 that deferral
elections made for 1998 will be applied to the entire annual
retainer, any additional committee chairperson annual retainer,
meeting fees and all other compensation earned by each eligible
director in 1998 and offset by the annual retainer credits of the
director under the plan during 1998;
E. To specify that deferral elections for 1999 and subsequent
years will apply to the half of the annual retainer that is
payable as current compensation and to any additional committee
chairperson annual retainer, meeting fees and all other
compensation paid to each eligible director each year, in
addition to and without offset by annual retainer credits for
the year.
F. The term "Directors' Fees" and other provisions of the plan
shall be amended to conform to the foregoing changes.
FURTHER RESOLVED, that the officers of the corporation are
authorized and directed to perform all acts and to do all things necessary
or appropriate to implement and carry out the foregoing resolutions.
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EXHIBIT 10.20
EXECUTIVE SEVERANCE AGREEMENT
As of February 28, 1998, each of the following officers have
entered into an Executive Severance Agreement identical to the form of
Executive Severance Agreement that is incorporated by reference from
Exhibit 10.17 of the Company's Form 8-K filed March 5, 1997:
Kevin T. Kabat
James A. Hubbard
William L. Sanders
David J. Wagner
Robert H. Warrington
Thomas D. Wisnom
<PAGE>
EXHIBIT 10.21
EXECUTIVE SEVERANCE AGREEMENT
As of February 28, 1998, each of the following officers have
entered into an Executive Severance Agreement identical to the form of
Executive Severance Agreement that is incorporated by reference from
Exhibit 10.18 of the Company's Form 8-K filed March 5, 1997:
Steven D. Crandall
David A. Dams
Gregory K. Daniels
E. Philip Farley
Ralph W. Garlick
David L. Kerstein
Kenneth C. Krei
Larry S. Magnesen
Daniel W. Terpsma
Michael J. Whalen
<PAGE>
EXHIBIT 10.22
INDEMNITY AGREEMENT
As of February 28, 1998, each of the following directors have
entered into an Indemnity Agreement identical to the form of Indemnity
Agreement that is incorporated by reference from Exhibit 10(c) of the
Company's Form 10-Q Quarterly Report for the fiscal quarter ended June 30,
1997:
Richard L. Antonini
John M. Bissell
John D. Boyles
William P. Crawford
Richard M. DeVos, Jr.
William G. Gonzalez
James P. Hackett
Erina Hanka
Earl D. Holton
Robert L. Hooker
Michael J. Jandernoa
Kevin T. Kabat
Fred P. Keller
John P. Keller
Hendrik G. Meijer
Percy A. Pierre
Patrick M. Quinn
Marilyn J. Schlack
Peter F. Secchia
David J. Wagner
Margaret Sellers Walker
Robert H. Warrington
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF REGISTRANT
as of December 31, 1997
(excluding inactive subsidiaries and low income housing investments)
1. Old Kent Bank
Jurisdiction of Incorporation: Michigan
2. Old Kent Bank, National Association
Jurisdiction of Incorporation: United States of America
3. Vanguard Financial Service Corp.
Jurisdiction of Incorporation: Illinois
4. Old Kent Brokerage Services, Inc.
Jurisdiction of Incorporation: Michigan
5. Old Kent Mortgage Services, Inc.
Jurisdiction of Incorporation: Michigan
6. Old Kent Mortgage Company
Jurisdiction of Incorporation: Michigan
7. Old Kent Insurance Group, Inc.
Jurisdiction of Incorporation: Michigan
8. GHA National Agency, Inc.
Jurisdiction of Incorporation: Michigan
9. Old Kent Financial Life Insurance Company
Jurisdiction of Incorporation: Arizona
10. National Pacific Mortgage Company
Jurisdiction of Incorporation: California
11. Republic Mortgage Corp.
Jurisdiction of Incorporation: Utah
12. Old Kent Capital Trust I
Jurisdiction of Incorporation: Delaware
13. Lyon Street Asset Management Company
Jurisdiction of Incorporation: Michigan
14. Old Kent Investment Corporation
Jurisdiction of Incorporation: Nevada
