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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 12, 1999
OLD KENT FINANCIAL CORPORATION
(Exact name of registrant as
specified in charter)
MICHIGAN 0-14591 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
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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, 1998, and other future filings.
(c) Exhibits:
NUMBER EXHIBIT
3.2 BYLAWS.
10.22 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 10.22.
10.23 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 10.23.
10.24 EXECUTIVE SEVERANCE AGREEMENTS. The form of Executive
Severance Agreement, with a participant schedule, is
attached as Exhibit 10.24.
10.25 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 10.25.
21 SUBSIDIARIES OF REGISTRANT.
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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/Mary E. Tuuk
Mary E. Tuuk
Senior Vice President and Secretary
Dated: March 15, 1999
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EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
3.2 BYLAWS.
10.22 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 10.22.
10.23 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 10.23.
10.24 EXECUTIVE SEVERANCE AGREEMENTS. The form of Executive
Severance Agreement, with a participant schedule, is
attached as Exhibit 10.24.
10.25 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 10.25.
21 SUBSIDIARIES OF REGISTRANT.
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EXHIBIT 3.2
Restated February 15, 1999
BYLAWS
OF
OLD KENT FINANCIAL CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office shall be in the
City of Grand Rapids, County of Kent, State of Michigan.
SECTION 2. OTHER OFFICES. The Corporation may also have offices
at such other places both within and without the State of Michigan as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. TIMES AND PLACES OF MEETINGS. All meetings of the
shareholders shall be held at such times and places, within or without the
State of Michigan, as may be fixed from time to time by the Board of
Directors. If no designation of the place of a meeting is made, such
meeting shall be held at the principal office of Old Kent Bank in Grand
Rapids, Michigan.
SECTION 2. ANNUAL MEETINGS. Annual meetings of the shareholders
shall be held each year at such time on such business day in the month of
April as may be designated by the Board of Directors, or if no such
designation is made, at 10 a.m. on the third Monday in April, or if that
day is a legal holiday, then on the next succeeding business day at such
place and hour as shall be fixed by the Board of Directors.
SECTION 3. SPECIAL MEETINGS. Special meetings of the shareholders
may be called by resolution of a majority of the Board of Directors or by
the Chairman of the Board or Chief Executive Officer of the Corporation,
and shall be held on a date fixed by the Board of Directors or the Chairman
of the Board or Chief Executive Officer.
SECTION 4. NOTICE OF MEETINGS. Written notice of each meeting of
shareholders, stating the time, place and purposes thereof, shall be given
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to each shareholder entitled to vote at the meeting not less than 10 nor
more than 60 days before the date fixed for the meeting. Notice of a
meeting need not be given to any shareholder who signs a waiver of notice
before or after the meeting. Attendance of a shareholder at a meeting
shall constitute (a) waiver of objection to lack of notice or defective
notice, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting any business because the meeting has not
been lawfully called or convened, and (b) waiver of objection to
consideration of a particular matter at the meeting that is not within the
purposes described in the meeting notice, unless the shareholder objects to
considering the matter when it is presented.
SECTION 5. SHAREHOLDER LIST. The officer or agent who has charge
of the stock ledger of the Corporation shall prepare and make a complete
list of the shareholders entitled to vote at each meeting, arranged by
class or series of shares in alphabetical order, showing the address of and
the number of shares registered in the name of each shareholder. The list
shall be produced at the time and place of the meeting and may be inspected
during the entire time of the meeting by any shareholder who is present at
the meeting.
SECTION 6. QUORUM. Unless a greater or lesser quorum is provided
in the Articles of Incorporation or statute, shares entitled to cast a
majority of the votes at a meeting constitute a quorum at the meeting.
Except when the holders of a class or series of shares are entitled to vote
separately on an item of business, shares of all classes and series
entitled to vote shall be combined as a single class and series for the
purpose of determining a quorum. When the holders of a class or series of
shares are entitled to vote separately on an item of business, shares of
that class or series entitled to cast a majority of the votes of that class
or series at a meeting constitute a quorum of that class or series at the
meeting, unless a greater or lesser quorum is provided in the Articles of
Incorporation or statute. If there is no quorum, the chairman of the
meeting shall have the power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is
present, when any business may be transacted which might have been
transacted at the meeting as first convened had there been a quorum. Once
a quorum is determined to be present, the shareholders present in person or
by proxy at such meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. If a meeting is adjourned solely for the purpose of receiving the
results of voting by shareholders, such meeting need not be reconvened. If
not reconvened, such meeting shall stand adjourned pending submission of
the results of voting to the Secretary of the Corporation, whereupon such
meeting shall stand adjourned until the next regular or special meeting of
shareholders.
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SECTION 7. VOTE REQUIRED. When a quorum is present at a meeting,
any action to be taken by a vote of the shareholders, other than the
election of directors, shall be authorized by a majority of the votes cast
by the holders of shares entitled to vote on the action, unless a greater
vote is required by the Articles of Incorporation or statute. Except as
otherwise provided by the Articles of Incorporation, directors shall be
elected by a plurality of the votes cast at an election.
SECTION 8. VOTING RIGHTS. Except as otherwise provided by the
Articles of Incorporation or the resolution or resolutions of the Board of
Directors creating any class of stock, each shareholder shall at every
meeting of the shareholders be entitled to one vote in person or by proxy
for each share of the capital stock having voting power held by such
shareholder.
SECTION 9. PROXIES. A shareholder entitled to vote at a meeting of
shareholders may authorize other persons to act for the shareholder by
proxy, subject to the following:
(a) A proxy is not valid after the expiration of three years
from its date unless otherwise provided in the proxy.
(b) The following methods constitute a valid means by which a
shareholder may grant authority to another person to act as proxy:
(i) the execution of a writing authorizing another person
or persons to act for the shareholder as proxy. Execution may be
accomplished by the shareholder or by an authorized officer,
director, employee, or agent signing the writing or causing his
or her signature to be affixed to the writing by any reasonable
means, including but not limited to facsimile signature; or
(ii) transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to
the person who will hold the proxy or to a proxy solicitation
firm, proxy support service organization, or similar agent fully
authorized by the person who will hold the proxy to receive that
transmission. Any telegram, cablegram, or other means of
electronic transmission must either set forth or be submitted
with information from which it can be determined that the
telegram, cablegram, or other electronic transmission was
authorized by the shareholder. If a telegram, cablegram, or
other electronic transmission is determined to be valid, the
inspectors, or if there are no inspectors the persons making the
determination, shall specify the information upon which they
relied.
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(c) A copy, facsimile telecommunication, or other reliable
reproduction of the writing or transmission created pursuant to
Subsection 9(b) may be substituted or used in lieu of the original
writing or transmission for any purpose for which the original writing
or transmission could be used, if the copy, facsimile
telecommunication, or other reproduction is a complete reproduction of
the entire original writing or transmission.
(d) A proxy is revocable at the pleasure of the shareholder
executing it, except as otherwise provided by law and the proxy.
(e) The authority of the holder of a proxy to act is not revoked
by the incompetence or death of the shareholder who executed the proxy
unless, before the authority is exercised, written notice of an
adjudication of the incompetence or death is received by the corporate
officer responsible for maintaining the list of shareholders.
(f) When any vote is taken by written ballot at any meeting of
shareholders, an unrevoked proxy submitted in accordance with its
terms shall be accepted in lieu of, and shall be deemed to constitute,
a written ballot marked as specified in such proxy.
SECTION 10. MATTERS TO BE CONSIDERED. Except as otherwise provided
by statute, the Articles of Incorporation, or these Bylaws:
(a) No matter may be presented for shareholder action at an
annual or special meeting of shareholders unless such matter is: (i)
specified in the notice of the meeting (or any supplement to the
notice) given by or at the direction of the Board of Directors; (ii)
presented at the meeting by or at the direction of the Board of
Directors; (iii) properly presented for action at the meeting by a
shareholder of record in accordance with the notice provisions set
forth in this Section 10 and any other applicable requirements; or
(iv) a procedural matter presented, or accepted for presentation, by
the chairman of the meeting in the chairman's sole discretion.
(b) For a matter to be properly presented by a shareholder for
action at a meeting of shareholders, the shareholder must be a
shareholder of record and must have given timely notice of the
shareholder's intention to present the matter for action at the
meeting in writing to the Secretary of the Corporation. To be timely,
the notice must be delivered to, or mailed to and received at, the
office of the Secretary of the Corporation not less than 120 calendar
days prior to the date corresponding to the date on which the
Corporation's proxy statement or notice of meeting was first released
to shareholders in connection with the last preceding annual meeting
of shareholders, in the case of an annual meeting (unless the
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Corporation did not hold an annual meeting within the last year, or if
the date of the upcoming annual meeting changed by more than 30 days
from the date of the last preceding meeting, then the notice must be
delivered or mailed and received not more than seven days after the
earlier of the date of the notice of the meeting or public disclosure
of the date of the meeting), or not more than seven days after the
earlier of the date of the notice of the meeting or public disclosure
of the date of the meeting, in the case of a special meeting. The
notice by the shareholder must set forth: (i) a brief description of
the matter the shareholder desires to present for shareholder action;
(ii) the name and record address of the shareholder proposing the
matter for shareholder action; (iii) the class and number of shares of
stock of the Corporation that are beneficially owned by the
shareholder; (iv) any material interest of the shareholder in the
matter proposed for shareholder action; and (v) the exact text of any
resolution the shareholder proposes to present for action at the
meeting.
SECTION 11. CONDUCT OF MEETINGS. Shareholder meetings shall be
conducted as follows:
(a) The chairman of the meeting shall determine the order of
business and shall have the authority to establish rules for the
conduct of the meeting. Any rules adopted for, and the conduct of,
the meeting shall be fair to shareholders.
(b) The chairman of the meeting shall have absolute authority
over matters of procedure and there shall be no appeal from the ruling
of the chairman.
(c) The chairman of the meeting may introduce nominations,
resolutions or motions submitted by the Board of Directors for
consideration by the shareholders without a motion or second. Except
as the chairman shall direct, a resolution or motion not submitted by
the Board of Directors shall be considered for a vote only if
presented in the manner provided in Article II, Section 10, of these
Bylaws.
(d) The chairman of the meeting may require any person who is
not a bona fide shareholder of record on the record date, or a validly
appointed proxy of such a shareholder, to leave the meeting.
(e) If disorder should arise that, in the absolute discretion of
the chairman of the meeting, would prevent the continuation of the
legitimate business of the meeting, the chairman may quit the chair
and announce the adjournment of the meeting; and upon his or her so
doing, the meeting shall be immediately adjourned without the
necessity of any vote or further action of the shareholders.
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(f) The chairman of the meeting shall announce at the meeting
when the polls close for each matter voted upon. If no announcement
is made, the polls shall close upon the final adjournment of the
meeting. After the polls close, no ballots, proxies, or votes nor any
revocations or changes to ballots, proxies, or votes may be accepted.
(g) When the chairman of the meeting has declared the polls to
be closed on all matters then before a meeting, the chairman may
declare the meeting to be adjourned pending determination of the
results by the inspectors of election. In such event, the meeting
shall be considered adjourned for all purposes, and the business of
the meeting shall be finally concluded upon delivery of the final
report of the inspectors of election to the chairman at or after the
meeting.
(h) When the chairman of the meeting determines that no further
matters may properly come before a meeting, he or she may declare the
meeting to be adjourned, without motion, second, or vote of the
shareholders.
(i) When the chairman of the meeting has declared a meeting to
be adjourned, unless the chairman has declared the meeting to be
adjourned until a later date, no further business may properly be
considered at the meeting even though shareholders or holders of
proxies representing a quorum may remain at the site of the meeting.
SECTION 12. INSPECTORS OF ELECTION. The Board of Directors or, if
they shall not have so acted, the chairman of a meeting of shareholders,
may appoint, at or prior to any meeting of shareholders, one or more
persons (who may be directors, officers or employees of the Corporation) to
serve as inspectors of election. The inspectors so appointed shall
determine the number of shares outstanding and the voting power of each,
the shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes or ballots, hear
and determine challenges and questions arising in connection with the right
to vote, count and tabulate votes or ballots, determine the result, and do
such acts as are proper to conduct the election or vote with fairness to
all shareholders.
SECTION 13. ADJOURNMENT. If a meeting is adjourned to another time
and place, it is not necessary, unless the Bylaws otherwise provide, to
give notice of the adjourned meeting if the time and place to which the
meeting is adjourned are announced at the meeting at which the adjournment
is taken and at the adjourned meeting only business is transacted that
might have been transacted at the original meeting. If after the
adjournment the Board of Directors fixes a new record date for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record on the new record date entitled to notice.
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ARTICLE III
RECORD DATE
SECTION 1. FIXING OF RECORD DATE BY BOARD. For the purpose of
determining the shareholders entitled to notice of or to vote at any
meeting of shareholders, or any adjournment thereof, or to express consent
to or dissent from any corporate action in writing without a meeting, or
for the purpose of determining shareholders entitled to receive payment of
any dividend or the distribution or allotment of any rights or evidences of
interests arising out of any change, conversion or exchange of capital
stock, or for the purpose of any other action, the Board of Directors may
fix, in advance, a date as the record date for any such determination of
shareholders. Such date shall be no more than 60 days nor less than 10
days before the date of any such meeting, nor more than 60 days prior to
the effectuation of any other action proposed to be taken. Only
shareholders of record on a record date so fixed shall be entitled to
notice of, and to vote at, such meeting or to receive payment of any
dividend or the distribution or allotment of any rights or evidences of
interests arising out of any change, conversion or exchange of capital
stock.
SECTION 2. PROVISION FOR RECORD DATE IN THE ABSENCE OF BOARD
ACTION. If a record date is not fixed by the Board of Directors: (a) the
record date for determination of shareholders entitled to notice of or to
vote at a meeting of shareholders shall be the close of business on the day
next preceding the day on which notice is given, or, if no notice is given,
the day next preceding the day on which the meeting is held; and (b) the
record date for determining shareholders for any other purpose shall be the
close of business on the day on which the resolution of the Board of
Directors relating to that purpose is adopted.
SECTION 3. ADJOURNMENTS. When a determination of shareholders of
record entitled to notice of or to vote at a meeting of shareholders has
been made as provided in this Article, the determination applies to any
adjournment of the meeting, unless the Board of Directors fixes a new
record date for the adjourned meeting.
ARTICLE IV
DIRECTORS
SECTION 1. NUMBER AND QUALIFICATION OF DIRECTORS. Each director
shall be at least 21 years of age. A director need not be a shareholder, a
citizen of the United States, or a resident of the State of Michigan. The
number of directors shall be fixed by resolution of the Board of Directors,
as provided in the Articles of Incorporation.
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SECTION 2. VACANCIES. Any vacancy, including a vacancy resulting
from any increase in the number of directors, shall be filled in the manner
provided in the Articles of Incorporation.
SECTION 3. POWERS. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors, which
may exercise all such powers of the Corporation and do all such lawful acts
and things as are not by statute, by the Articles of Incorporation or by
these Bylaws directed or required to be exercised or done by the
shareholders.
SECTION 4. FEES AND EXPENSES. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude
any director from serving the Corporation in any other capacity and
receiving compensation therefore. Members of special or standing
committees may be allowed compensation for attending committee meetings.
SECTION 5. RESIGNATION AND REMOVAL. Any director may resign at
any time. Such a resignation shall take effect upon receipt of written
notice of resignation by the Corporation, or at such subsequent time as set
forth in the notice of resignation. Directors may be removed only as
provided by statute or the Articles of Incorporation.
ARTICLE V
MEETINGS OF DIRECTORS
SECTION 1. PLACE OF MEETINGS. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Michigan.
SECTION 2. FIRST MEETING OF NEWLY ELECTED BOARD. The first
meeting of each newly elected Board of Directors shall be held immediately
following the annual meeting of shareholders. No notice of such a meeting
shall be necessary to the newly elected directors to legally constitute the
meeting, provided a quorum shall be present. In the event such meeting is
not held immediately following the annual meeting of shareholders, the
meeting may be held at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the Board of
Directors, or as shall be specified in a written waiver signed by all of
the directors.
SECTION 3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held with or without notice at such time and at such place
as shall from time to time be determined by the Board of Directors.
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SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the Chief Executive
Officer on one day's notice to each director. Such notice may be given
personally, by mail, by telegram, by facsimile transmission or by other
means of electronic transmission. Special meetings shall be called by the
Chairman of the Board or Chief Executive Officer in like manner and on like
notice on the written request of two directors.
SECTION 5. PURPOSE NEED NOT BE STATED. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Board of Directors need be specified in the notice of such meeting.
SECTION 6. QUORUM. At all meetings of the Board of Directors a
majority of the total number of directors shall constitute a quorum for the
transaction of business, and the acts of a majority of the directors
present at any meeting at which there is a quorum shall be the acts of the
Board of Directors, except as may be otherwise specifically provided by
statute or by the Articles of Incorporation. If a quorum is not present at
any meeting of the Board of Directors, the directors present may adjourn
the meeting from time to time, without notice other than announcement at
the meeting, until a quorum is present.
SECTION 7. ACTION WITHOUT A MEETING. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if, before or after the
action, all members of the Board of Directors or of such committee, as the
case may be, consent to the action in writing. Any such written consent
shall be filed with the minutes or proceedings of the Board or Directors or
committee.
SECTION 8. MEETING BY TELEPHONE OR SIMILAR EQUIPMENT. Members of
the Board of Directors or any committee designated by the Board of
Directors may participate in a meeting of such Board of Directors or
committee, by means of conference telephone or similar communications
equipment by means through which all persons participating in the meeting
can communicate with each other. Participation in a meeting pursuant to
this Section shall constitute presence in person at the meeting.
SECTION 9. WAIVER OF NOTICE. Attendance of a director at or
participation in a meeting of the Board of Directors or any committee
constitutes a waiver of notice of the meeting, except where a director
attends a meeting for the express purpose of objecting, at the beginning of
the meeting or upon his or her arrival, to the meeting or the transaction
of any business because the meeting has not lawfully been called or
convened, and the person does not thereafter vote for or assent to any
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action taken at the meeting. Notice of any meeting of the Board of
Directors or a committee need not be given to any person entitled thereto
who waives such notice in writing, either before or after the meeting.
ARTICLE VI
COMMITTEES OF DIRECTORS
SECTION 1. COMMITTEES. The Board of Directors may from time to
time appoint committees, whose membership shall consist of such members of
the Board of Directors as it may deem advisable, to serve at the pleasure
of the Board of Directors. The Board of Directors may also appoint
directors to serve as alternates for members of each committee in the
absence or disability of regular members. The Board of Directors may fill
any vacancies in any committee as they occur.
SECTION 2. EXECUTIVE COMMITTEE. The Executive Committee, if there
is one, shall have and may exercise the full powers and authority of the
Board of Directors in the management of the business affairs and property
of the Corporation during the intervals between meetings of the Board of
Directors. The Executive Committee shall also have the power and authority
to declare distributions and dividends and to authorize the issuance of
stock.
SECTION 3. AUDIT COMMITTEE.
(a) FUNCTION. The Audit Committee shall perform the function of
an audit committee for the Corporation and each of its subsidiaries as
that function may be defined for the purpose of compliance with laws
and regulations applicable to the Corporation and each of its
subsidiaries. The Audit Committee shall have the following duties and
responsibilities:
(i) causing a suitable examination of the financial records
and operations of the Corporation and each of its subsidiaries to
be made by the internal auditor of the Corporation;
(ii) recommending to the Board of Directors the employment
of independent public accountants who fulfill the requirements
established by Section 36 of the Federal Deposit Insurance Act,
as amended, and any regulations issued pursuant to such act by
the Federal Deposit Insurance Corporation or any successor of
such corporation;
(iii) reviewing with the independent public accountants and
management of the Corporation and its subsidiaries the bases for
reports required by Section 36 of the Federal Deposit Insurance
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Act, as amended, and any regulations issued pursuant to such act
by the Federal Deposit Insurance Corporation or any successor of
such corporation;
(iv) reviewing examination reports of the Corporation
prepared by regulatory authorities and such other information
concerning examination reports of the Corporation's subsidiaries
as the committee deems advisable; and
(v) reporting to the Board of Directors at least once each
calendar year concerning the results of examinations made and
such conclusions and recommendations as the Audit Committee deems
advisable.
(b) ELIGIBILITY OF MEMBERS. Directors who fulfill all of the
following conditions shall be eligible to serve on the Audit
Committee:
(i) members may not be current employees of the Corporation
or any of its subsidiaries; and
(ii) members must satisfy the requirements established by
Section 36 of the Federal Deposit Insurance Act, as amended, and
any regulations issued pursuant to such act by the Federal
Deposit Insurance Corporation or any successor of such
corporation.
(c) AUTHORIZED ACTIONS. The Audit Committee shall have and may
exercise the full power and authority of the Board of Directors to
take, authorize, approve or ratify such actions as the Audit Committee
deems appropriate in performance of the duties and responsibilities
delegated to the Audit Committee by these Bylaws of the Board of
Directors. The Audit Committee may engage counsel and other
consultants to assist the committee in performing its duties. Such
counsel and other consultants may but need not be otherwise engaged by
the Corporation unless otherwise prohibited by applicable laws or
regulations.
SECTION 4. COMPENSATION COMMITTEE.
(a) FUNCTION. The Compensation Committee shall perform the
function of a compensation committee as that function may be defined
for the purpose of compliance with laws and regulations applicable to
the Corporation. The Compensation Committee shall have the following
duties and responsibilities:
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(i) determining compensation policy of the Corporation,
reviewing compensation policies and programs of the Corporation,
and submitting recommendations to the Board of Directors;
(ii) reviewing functions, performance and compensation of
senior executive officers;
(iii) determining compensation of the Chief Executive
Officer;
(iv) preparing an annual report to the Corporation's
shareholders concerning the compensation policy of the
Corporation;
(v) approving the design, implementation, amendment and
termination of option plans and benefit plans of the Corporation;
and
(vi) administering option plans and benefit plans of
the Corporation.
(b) ELIGIBILITY OF MEMBERS. Directors who satisfy all of the
following conditions shall be eligible to serve as members of the
Compensation Committee:
(i) a member may not be a current or former employee of the
Corporation or any of its subsidiaries;
(ii) a member must be a "Non-Employee Director" as such term
is defined in Securities and Exchange Commission Rule 16b-3;
(iii) a member must be an "outside director" as such term is
defined for the purpose of Internal Revenue Service Regulation
1.162-27; and
(iv) a member must not have an "Interlocking Relationship"
with the Corporation or any of its officers. An "Interlocking
Relationship" shall include a relationship in which an executive
officer of the Corporation serves as a member of the board of
directors of another entity of which a director of the
Corporation is an executive officer, or any other relationship
which would be required to be disclosed pursuant to Item
402(j)(3) of Securities and Exchange Commission Regulation S-K.
(c) AUTHORIZED ACTIONS. The Compensation Committee shall have
and may exercise the full power and authority of the Board of
Directors to:
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(i) approve adoption, amendment and termination of stock
option plans and benefit plans of the Corporation;
(ii) exercise all powers and duties of the Corporation as
sponsor and plan administrator of its option plans and benefit
plans and to delegate administrative functions and
responsibilities to employees of the Corporation or any
subsidiary of the Corporation;
(iii) interpret stock option plans and benefit plans and
programs of the Corporation in accordance with their terms and
applicable law;
(iv) authorize the issuance of stock of the Corporation
pursuant to the option plans and benefit plans of the
Corporation, subject to any required approval of the
shareholders;
(v) engage counsel and other consultants as the Committee
may deem necessary or advisable to assist the Committee in
performing its duties, which counsel and other consultants may
but need not be otherwise engaged by the Corporation; and
(vi) take, authorize, approve or ratify such actions as
the Compensation Committee deems appropriate in performance of
the duties and responsibilities delegated to the Compensation
Committee by these Bylaws or the Board of Directors.
SECTION 5. COMMITTEE ON DIRECTORS. The Committee on Directors, if
there is one, shall have the following duties and responsibility:
(a) considering candidates for the Board of Directors;
(b) proposing to the Board of Directors candidates for the Board
of Directors to be appointed by the Board of Directors to fill
vacancies or to be nominated for election by the shareholders;
(c) reviewing and recommending the compensation and retirement
policies of the Board of Directors and making recommendations to the
Board of Directors concerning implementation of these policies;
(d) reviewing director attendance; and
(e) such other duties, responsibilities, power and authority as
may be delegated to the Committee on Directors by the Board of
Directors.
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SECTION 6. OTHER COMMITTEES. The Board of Directors may designate
such other committees as it may deem appropriate, and such committees shall
exercise the authority delegated to them.
SECTION 7. MEETINGS. Each committee provided for above shall meet
as often as its business may require and may fix a day and time for regular
meetings, notice of which shall not be required. Whenever the day fixed
for a meeting shall fall on a holiday, the meeting shall be held on the
following business day or on such other day as the chairman of the
committee may determine. Special meetings of committees may be called by
any member, and notice thereof may be given to the members personally, by
mail, by telegram, by facsimile transmission or by other means of
electronic transmission. A majority of the members of a committee shall
constitute a quorum for the transaction of the business of the committee.
A record of the proceedings of each committee shall be kept and presented
to the Board of Directors.
SECTION 8. SUBSTITUTES. In the absence or disqualification of a
member of a committee, the members thereof present at a meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of such absent or disqualified member.
ARTICLE VII
OFFICERS AND TITLED POSITIONS
SECTION 1. APPOINTMENT OF OFFICERS. The Board of Directors at its
first meeting after the annual meeting of shareholders, or as soon as
practicable after the election of directors in each year, shall appoint
from its number a Chairman of the Board and a President. The Board of
Directors shall also appoint a Secretary, a Treasurer and a Chief
Financial Officer, all of whom shall be officers of the Corporation. The
Board of Directors may also appoint and expressly designate such other
individuals as it may deem proper to be officers of the Corporation, with
such titles as the Board of Directors may deem appropriate. If the offices
of Chairman of the Board and President are held by a single person, that
officer shall be the Chief Executive Officer of the Corporation; if not,
the Board of Directors shall designate either the Chairman of the Board or
the President to be the Chief Executive Officer of the Corporation. The
dismissal of an officer, the appointment of an officer to fill the office
of one who has been dismissed or has ceased for any reason to be an
officer, the appointment of any additional officers, and the change of an
officer to a different or additional office, may be made by the Board of
Directors at any later meeting. Any two or more offices may be filled by
the same person.
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SECTION 2. APPOINTMENTS TO TITLED POSITIONS. The Board of
Directors or the Chief Executive Officer may from time to time appoint
individuals to fill titled positions. Holders of titled positions who may
from time to time be appointed pursuant to this Section shall hold such
titles as are assigned by the Board of Directors or the Chief Executive
Officer and shall perform such duties and exercise such authority as may be
assigned by the Board of Directors or the Chief Executive Officer.
Dismissal of the holder of a titled position, appointment of a replacement
for a holder of a titled position, appointment of any additional titled
position holders, and change of a titled position holder to a different or
additional position, may be made by the Board of Directors or the Chief
Executive Officer. Any two or more titled positions may be filled by the
same person.
SECTION 3. AUTHORITY OF OFFICERS. The Chief Executive Officer,
the President (if not also the Chief Executive Officer), the Secretary, the
Treasurer, the Chief Financial Officer and such other persons as the Board
of Directors shall have appointed and expressly designated as officers
shall be the only officers of the Corporation. Only the officers of the
Corporation shall have discretionary authority to determine the fundamental
policies of the Corporation. Holders of titled positions who have not been
expressly designated as officers of the Corporation in this Section or by
the Board of Directors shall not be officers of the Corporation regardless
of their titles.
SECTION 4. AUTHORITY OF TITLED POSITIONS. Holders of titled
positions who are not officers shall not have discretionary authority to
determine fundamental policies of the Corporation and shall not, by reason
of holding such titled positions, be entitled to have access to any files,
records or other information relating or pertaining to the Corporation, its
business and finances, or to attend or receive the minutes of any meetings
of the Board of Directors or any committee of the Corporation, except as
and to the extent expressly authorized and permitted by the Board of
Directors or the Chief Executive Officer.
SECTION 5. TERM OF SERVICE. Each officer and holder of a titled
position shall serve at the pleasure of the board. The Board of Directors
may remove any officer or holder of a titled position from that office or
position for cause or without cause. Any officer or holder of a titled
position may resign his or her office or position at any time, such
resignation to take effect upon receipt of written notice thereof by the
Corporation unless otherwise specified in the resignation.
SECTION 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the shareholders and all meetings of the Board
of Directors.
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SECTION 7. PRESIDENT. The President shall, subject to the
direction of the Board of Directors, see that all orders and resolutions of
the Board of Directors are carried into effect, and shall perform all other
duties necessary or appropriate to his or her office, subject, however, to
his or her right and the right of the directors to delegate any specific
powers to any other officer or officers of the Corporation. In case of the
absence or inability to act of the Chairman of the Board, the President
shall exercise all of the duties and responsibilities of the Chairman of
the Board until the Board of Directors shall otherwise direct.
SECTION 8. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer,
in addition to his or her duties as Chairman of the Board or President, as
the case may be, shall have final authority, subject to the control of the
Board of Directors, over the general policy and business of the Corporation
and shall have the general control and management of the business and
affairs of the Corporation. The Chief Executive Officer shall have the
power, subject to the control of the Board of Directors, to appoint,
suspend or discharge and to prescribe the duties and to fix the
compensation of such agents and employees of the Corporation, other than
the officers appointed by the Board of Directors, as he or she may deem
necessary.
SECTION 9. VICE-CHAIRMEN OF THE BOARD. Each Vice-Chairman of the
Board shall have such powers and perform such duties as may be assigned to
him or her from time to time by the Board of Directors or the Chief
Executive Officer. In case of the absence or inability to act of the
Chairman of the Board and the President, the duties of his or her office
shall, unless otherwise specified by these Bylaws, be performed by the
Vice-Chairmen of the Board in the order of their seniority or such other
priority as may be established by the Board of Directors or by the Chief
Executive Officer, unless and until the Board of Directors shall otherwise
direct, and, when so acting, the duly authorized Vice-Chairman of the Board
shall have all the powers of, and shall be subject to the restrictions
upon, the Chairman of the Board or the President.
SECTION 10. VICE PRESIDENTS. Each Executive Vice President, Senior
Vice President, Vice President, Assistant Vice President and such other
vice presidents as may be designated by the Board of Directors shall have
such powers and perform such duties as may be assigned to him or her from
time to time by the Board of Directors or the Chief Executive Officer. In
case of the absence or inability to act of the President, and in the
absence or inability to act of the Vice-Chairmen of the Board, the duties
of the President shall, unless otherwise specified by these Bylaws, be
performed by the Executive Vice Presidents, the Senior Vice Presidents, the
Vice Presidents, the Assistant Vice Presidents and then such other vice
presidents as may be designated by the Board of Directors in the order of
their seniority or such other priority as may be established by the Board
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of Directors or by the Chief Executive Officer, unless and until the Board
of Directors shall otherwise direct, and, when so acting, the duly
authorized Executive Vice President, Senior Vice President, Vice President
or Assistant Vice President shall have all the powers of, and shall be
subject to the restrictions upon, the President. Executive Vice
Presidents, Senior Vice Presidents, Vice Presidents and Assistant Vice
Presidents have the authority to sign or execute contracts and other
documents which shall be binding on the Corporation and to fulfill the
terms thereof, but such Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents and Assistant Vice Presidents shall not have the
discretionary policy-making authority conferred upon the officers by these
Bylaws unless expressly designated as an officer by the Board of Directors.
SECTION 11. SECRETARY. The Secretary shall attend all sessions of
the Board of Directors and all meetings of the shareholders and shall
record all votes and the minutes of all proceedings in a book to be kept
for that purpose. The Secretary shall perform like duties for committees
when required. He or she shall give, or cause to be given, notice of all
meetings of the shareholders and meetings of the Board of Directors. He or
she shall keep in safe custody the seal of the Corporation and shall see
that it is affixed to all documents the execution of which, on behalf of
the Corporation under its seal, is necessary or appropriate, and when so
affixed may attest the same. He or she shall perform such other duties as
may be prescribed by the Board of Directors or the Chief Executive Officer.
SECTION 12. TREASURER. The Treasurer shall have custody of the
corporate funds and securities, except as otherwise provided by the Board
of Directors, shall cause to be kept full and accurate accounts of receipts
and disbursements in books belonging to the Corporation, and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors. He or she shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors, at the regular
meetings of the Board of Directors or whenever they may require it, an
account of all his or her transactions as Treasurer and of the financial
condition of the Corporation.
SECTION 13. ABSENCE. In the case of the absence or inability to
act of any officer or holder of any titled position, or for any other
reason that the Board of Directors may deem sufficient, the Board of
Directors or the Chief Executive Officer may delegate for the time being
the powers or duties of such officer or holder of any titled position, to
any other director or officer. To the extent that the enumerated powers or
duties do not involve participation in major policy-making functions of the
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Corporation or the exercise of discretionary authority to that end, said
powers or duties may be delegated for the time being to the holder of a
titled position, but shall be exercised under the supervision of an
officer.
ARTICLE VIII
INDEMNIFICATION
SECTION 1. INDEMNIFICATION OTHER THAN IN ACTIONS BY OR IN THE
RIGHT OF THE CORPORATION. Any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he or she is or was a director or executive
officer of the Corporation or a subsidiary, or, while serving as such a
director or executive officer, is or was serving at the request of the
Corporation or a subsidiary as a director, officer, partner, trustee,
employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, whether for profit or not, shall
be indemnified by the Corporation against expenses (including attorneys'
fees), judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or her in connection with such action, suit
or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation or its shareholders, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the Corporation or its
shareholders, or with respect to any criminal action or proceeding, that he
or she had reasonable cause to believe that his or her conduct was
unlawful. Persons who are not directors or executive officers of the
Corporation or a subsidiary may be similarly indemnified in respect of such
service to the extent authorized at any time by the Board of Directors,
except as otherwise provided by statute or the Articles of Incorporation.
SECTION 2. INDEMNIFICATION IN ACTIONS BY OR IN THE RIGHT OF THE
CORPORATION. Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was a director or executive officer of the
Corporation or a subsidiary, or, while serving as such a director or
executive officer, is or was serving at the request of the Corporation or a
subsidiary as a director, officer, partner, trustee, employee or agent of
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another foreign or domestic corporation, partnership, joint venture, trust
or other enterprise, whether for profit or not, shall be indemnified by the
Corporation against expenses (including attorneys' fees) and amounts paid
in settlement actually and reasonably incurred by him or her in connection
with the action or suit if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of
the Corporation or its shareholders. Indemnification shall not be made for
any claim, issue or matter in which such person has been found liable to
the Corporation except to the extent authorized in Section 6 of this
Article. Persons who are not directors or executive officers of the
Corporation or a subsidiary may be similarly indemnified in respect of such
service to the extent authorized at any time by the Board of Directors,
except as otherwise provided by statute or the Articles of Incorporation.
SECTION 3. EXPENSES. To the extent that a director or executive
officer, or other person whose indemnification is authorized by the Board
of Directors, has been successful on the merits or otherwise, including the
dismissal of an action without prejudice, in the defense of any action,
suit or proceeding referred to in Section 1 or 2 of this Article, or in the
defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith and any action,
suit or proceeding brought to enforce the mandatory indemnification
provided in this Section.
SECTION 4. DETERMINATION THAT INDEMNIFICATION IS PERMITTED. Any
indemnification under Section 1 or 2 of this Article (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification is proper in the
circumstances because the person has met the applicable standard of conduct
set forth in this Article and upon an evaluation of the reasonableness of
expenses and amounts paid in settlement. Such determination and evaluation
shall be made in any of the following ways:
(a) by the Board of Directors by a majority vote of a quorum
consisting of directors who are not parties or threatened to be made
parties to such action, suit or proceeding;
(b) if a quorum cannot be obtained under subsection (a), by a
majority vote of a committee duly designated by the Board of Directors
consisting solely of two or more directors not at the time parties or
threatened to be made parties to such action, suit or proceeding;
(c) by independent legal counsel (who may be the regular counsel
to the Corporation) in a written opinion, which counsel shall be
selected by the Board of Directors or its committee as provided in (a)
or (b) above; provided that if a quorum of the Board of Directors
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cannot be obtained under (a) above and a committee cannot be
designated as provided in (b) above, then the Board of Directors shall
select such independent counsel; or
(d) by all Independent Directors (as that term is defined in the
Michigan Business Corporation Act) who are not parties or threatened
to be made parties to such action, suit or proceeding; or
(e) by the shareholders, but shares held by directors, officers,
employees or agents who are parties or threatened to be made parties
to such action, suit or proceeding may not be voted for this purpose.
In designating a committee under (b) above, or in the selection of
independent legal counsel in the event a committee cannot be designated
pursuant to (c) above, all directors may participate. The Corporation may
indemnify a person for a portion of expenses (including reasonable
attorneys' fees), judgments, penalties, fines and amounts paid in
settlement for which the person is entitled to indemnification under
Section 1 or 2 of this Article, even though the person is not entitled to
indemnification for the total amount of such expenses, judgments,
penalties, fines and amounts paid in settlement.
SECTION 5. INDEMNIFICATION FOR LIMITED LIABILITY. To the extent
that the Articles of Incorporation eliminate or limit the liability of a
director pursuant to Section 209(1)(c) of the Michigan Business Corporation
Act, the Corporation shall indemnify a director for the expenses and
liabilities described in this Section 5 without a determination that the
director has met the standard of conduct set forth in Sections 1 or 2 of
this Article; but no indemnification may be made except to the extent
authorized in Section 6 of this Article if the director received a
financial benefit to which he or she was not entitled, intentionally
inflicted harm on the Corporation or its shareholders, violated Section 551
of the Michigan Business Corporation Act or intentionally committed a
criminal act. In connection with an action or suit by or in the right of
the Corporation as described in Section 2 of this Article, indemnification
under this Subsection 5 may be for expenses, including attorneys' fees,
actually and reasonably incurred. In connection with an action, suit, or
proceeding other than an action, suit, or proceeding by or in the right of
the Corporation, as described in Section 2 of this Article, indemnification
under this Section 5 may be for expenses, including attorneys' fees,
actually and reasonably incurred, and for judgments, penalties, fines, and
amounts paid in settlement actually and reasonably incurred.
SECTION 6. ADVANCING OF EXPENSES. Expenses incurred by any person
who is or was serving as a director or executive officer of the Corporation
or a subsidiary who is a party or threatened to be made a party to any
civil or criminal action, suit or proceeding described in Section 1 or 2 of
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this Article shall be paid or reimbursed by the Corporation in advance of
the final disposition of such action, suit or proceeding if (a) the person
furnishes the Corporation a written affirmation of his or her good faith
belief that he or she has met the applicable standard of conduct set forth
in Section 1 or 2 of this Article; (b) the person furnishes the Corporation
a written undertaking, executed personally or on his or her behalf, to
repay the advance if it is ultimately determined that he or she did not
meet the applicable standard of conduct; and (c) no determination has been
made that the facts then known to those making the determination would
preclude indemnification under the Michigan Business Corporation Act.
Persons who are not or were not serving as a director or executive officer
of the Corporation or a subsidiary may receive similar advances of expenses
to the extent authorized at any time by the Board of Directors, except as
otherwise provided by statute or the Articles of Incorporation.
Determinations under this Section shall be made in the manner specified in
Section 4 of this Article. Notwithstanding the foregoing, in no event
shall any advance be made in instances where the Board of Directors or
independent legal counsel reasonably determines that such person
deliberately breached his or her duty to the Corporation or its
shareholders.
SECTION 7. RIGHT TO INDEMNIFICATION UPON APPLICATION; PROCEDURE
UPON APPLICATION. A director, executive officer or other person who is a
party or threatened to be made a party to an action, suit or proceeding may
apply for indemnification to the court conducting the proceeding or to
another court of competent jurisdiction. On receipt of an application, the
court may order indemnification if it determines that the person is fairly
and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he or she met the applicable standard of
conduct set forth in Section 1 or 2 of this Article or was adjudged liable
as described in Section 2 of this Article, provided, however, that if he or
she was adjudged liable as described in Section 2 of this Article, his or
her indemnification shall be limited to reasonable expenses incurred.
SECTION 8. INDEMNIFICATION UNDER BYLAWS NOT EXCLUSIVE. The
indemnification or advancement of expenses provided by this Article shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the
Articles of Incorporation, any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee or agent, and shall inure to the benefit of the heirs,
executors and administrators of such a person. The total amount of
expenses advanced or indemnified from all sources shall not exceed the
amount of actual expenses incurred by the person seeking indemnification or
advancement of expenses. All rights to indemnification under this Article
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shall be deemed to be provided by a contract between the Corporation and
the director, officer, employee or agent who serves in such capacity at any
time while these Bylaws and other relevant provisions of the general
corporation law and other applicable law, if any, are in effect. Any
repeal or modification thereof shall not affect any rights or obligations
then existing.
SECTION 9. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as
such, whether or not the Corporation would have the power to indemnify him
or her against such liability under the provisions of this Article.
SECTION 10. MERGERS. For the purposes of this Article, references
to the "Corporation" include the Corporation if absorbed in a consolidation
or merger, as well as the resulting or surviving corporation, so that any
person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee or agent of another foreign
or domestic corporation, partnership, joint venture, trust or other
enterprise, whether for profit or not, shall stand in the same position
under the provisions of this Article with respect to the resulting or
surviving Corporation as the person would if the Corporation were the
resulting or surviving corporation and he or she had served the resulting
or surviving Corporation in the same capacity.
SECTION 11. SAVINGS CLAUSE. If this Article or any portion thereof
shall be invalidated on any ground by any court of competent jurisdiction,
then the Corporation shall nevertheless indemnify each director, executive
officer or other person whose indemnification is authorized by the Board of
Directors as to expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including a grand
jury proceeding and an action by the Corporation, to the full extent
permitted by any applicable portion of this Article that shall not have
been invalidated or by any other applicable law.
ARTICLE IX
SUBSIDIARIES
SECTION 1. SUBSIDIARIES. The Board of Directors, the Chief
Executive Officer, or any executive officer designated by the Board of
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Directors may vote the shares of stock owned by the Corporation in any
subsidiary, whether wholly or partly owned by the Corporation, in such
manner as they may deem in the best interests of the Corporation,
including, without limitation, for the election of directors of any
subsidiary corporation, or for any amendments to the charter or bylaws of
any such subsidiary corporation, or for the liquidation, merger or sale of
assets of any such subsidiary corporation. The Board of Directors, the
Chief Executive Officer, or any executive officer designated by the Board
of Directors may cause to be elected to the Board of Directors of any such
subsidiary corporation such persons as they shall designate, any of whom
may, but need not be, directors, executive officers, or other employees or
agents of the Corporation. The Board of Directors, the Chief Executive
Officer, or any executive officer designated by the Board of Directors may
instruct the directors of any such subsidiary corporation as to the manner
in which they are to vote upon any issue properly coming before them as the
directors of such subsidiary corporation, and such directors shall have no
liability to the Corporation as the result of any action taken in
accordance with such instructions.
SECTION 2. SUBSIDIARY OFFICERS NOT EXECUTIVE OFFICERS. The
officers of any subsidiary corporation shall not, by virtue of holding such
title and position, be deemed to be executive officers of the Corporation,
nor shall any such officer of a subsidiary corporation, unless he or she is
also a director or executive officer of the Corporation, be entitled to
have access to any files, records or other information relating or
pertaining to the Corporation, its business and finances, or to attend or
receive the minutes of any meetings of the Board of Directors or any
committee of the Corporation, except as and to the extent expressly
authorized and permitted by the Board of Directors or the Chief Executive
Officer.
ARTICLE X
CERTIFICATES OF STOCK
SECTION 1. FORM. Every holder of stock in the Corporation shall
be entitled to have a certificate, signed by, or in the name of the
Corporation by, the Chairman of the Board, a Vice Chairman of the Board,
the President, an Executive Vice President, a Senior Vice President, or a
Vice President and which may, but need not be, also be signed by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by him or her in
the Corporation. The certificate may, but need not be, sealed with the
seal of the Corporation, or a facsimile thereof. The Board of Directors
may authorize the issuance of some or all of the shares of any class or
series of stock of the Corporation without certificates.
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SECTION 2. FACSIMILE SIGNATURES. Where a certificate is signed
(a) by a transfer agent or an assistant transfer agent, or (b) by a
transfer clerk acting on behalf of the Corporation and a registrar, the
signatures of the Chairman of the Board, Vice Chairman of the Board,
President, Executive Vice President, Senior Vice President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be
facsimiles. In case any officer or any holder of a titled position who has
signed, or whose facsimile signature has been used on, any certificate
shall cease to be such officer or holder before such certificate has been
delivered by the Corporation, such certificate may nevertheless be issued
and delivered as though the person who signed such certificate or whose
facsimile signature appears thereon continued to be such officer or holder
of such titled position.
SECTION 3. LOST CERTIFICATES. The officers may direct a new
certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a
new certificate or certificates, the officers may, in their discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his or her legal representative,
to advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as they may direct as indemnity against any
claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 4. REGISTERED OWNER. The Corporation shall be entitled to
recognize the exclusive rights of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the
owner of shares; the Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Michigan.
ARTICLE XI
GENERAL PROVISIONS
SECTION 1. CHECKS. Any signature on any check, demand or note may
be signed by the facsimile signature of any person authorized by the Board
of Directors to sign under this Section 1 of Article XI. If any officer
who has signed or whose facsimile signature has been used shall cease to be
such officer, such document may nevertheless be signed by means of such
facsimile signature and delivered as though the person who signed such
document or whose facsimile signature has been used thereon had not ceased
to be such officer.
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SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
SECTION 3. SEAL. The corporate seal shall have inscribed thereon
the name of the Corporation and the words "Corporate Seal, Michigan." The
seal may be used by causing it or a facsimile thereof to be impressed,
affixed, reproduced or otherwise.
SECTION 4. VOTING SECURITIES. The Chief Executive Officer or any
executive officer designated by the Board of Directors shall have full
power and authority on behalf of the Corporation to attend and to act and
to vote, or to execute in the name or on behalf of the Corporation a proxy
authorizing an agent or attorney-in-fact for the Corporation to attend and
to act and to vote, at any meetings of security holders of corporations in
which the Corporation may hold securities, and at such meetings he or she
and his or her duly authorized agent or attorney-in-fact shall possess and
may exercise any and all rights and powers incident to the ownership of
such securities and which, as the owner thereof, the Corporation might have
possessed and exercised if present.
SECTION 5. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Articles of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting pursuant to law. Dividends may be paid in cash, in property, or in
shares of capital stock, subject to the provisions of the Articles of
Incorporation.
SECTION 6. RESERVES. Before payment of any dividends, there may
be set aside out of any funds of the Corporation available for dividends
such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or for such other purpose as the directors shall think
conducive to the interests of the Corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
ARTICLE XII
AMENDMENTS
These Bylaws may be amended, altered, changed, added to or repealed by
the shareholders at any regular or special meeting of the shareholders if
notice of such action be contained in the notice of such meeting, or by the
Board of Directors at any regular or special meeting of the Board of
Directors.
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EXHIBIT 10.22
EXECUTIVE SEVERANCE AGREEMENT
As of December 31, 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:
James A. Hubbard
Kevin T. Kabat
David J. Wagner
Robert H. Warrington
<PAGE>
EXHIBIT 10.23
EXECUTIVE SEVERANCE AGREEMENT
As of December 31, 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:
Gary S. Bernard
Donald R. Britton
Steven D. Crandall
David A. Dams
Gregory K. Daniels
E. Philip Farley
Mark F. Furlong
Ralph W. Garlick
Joseph T. Keating
Kenneth C. Krei
Larry S. Magnesen
William K. McGowan
Ronald C. Mishler
Michael D. Schaver
David C. Schneider
Daniel W. Terpsma
Michelle L. VanDyke
Michael J. Whalen
<PAGE>
EXHIBIT 10.24
EXECUTIVE SEVERANCE AGREEMENT
EXECUTIVE SEVERANCE
AGREEMENT FOR
OLD KENT FINANCIAL CORPORATION
DATE
<PAGE>
CONTENTS
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PAGE
Article 1. Establishment, Term, and Purpose 2
Article 2. Definitions 2
Article 3. Severance Benefits 6
Article 4. Form and Timing of Severance Benefits 9
Article 5. Excise Tax Equalization Payment 9
Article 6. Establishment of Trust 11
Article 7. The Company's Payment Obligation 11
Article 8. Legal Remedies 12
Article 9. Outplacement Assistance 12
Article 10. Successors and Assignment 12
Article 11. Miscellaneous 13
<PAGE>
OLD KENT FINANCIAL CORPORATION
EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT is made and entered into as of the DAY OF
199_, by and between Old Kent Financial Corporation
(hereinafter referred to as the "Company") and
(hereinafter referred to as the "Executive").
WHEREAS, the Board of Directors of the Company has approved the
Company entering into severance agreements with certain key executives of the
Company;
WHEREAS, the Executive is a key executive of the Company;
WHEREAS, should the possibility of a Change in Control of the
Company arise, the Board believes it is imperative that the Company and the
Board should be able to rely upon the Executive to continue in his position,
and that the Company should be able to receive and rely upon the Executive's
advice, if requested, as to the best interests of the Company and its
shareholders without concern that the Executive might be distracted by the
personal uncertainties and risks created by the possibility of a Change in
Control;
WHEREAS, should the possibility of a Change in Control arise, in
addition to [his/her] regular duties, the Executive may be called upon to
assist in the assessment of such possible Change in Control, advise
management and the Board as to whether such Change in Control would be in
the best interests of the Company and its shareholders, and to take such
other actions as the Board might determine to be appropriate; and
WHEREAS, the Executive and the Company desire that the terms of
this Agreement shall completely replace and supersede the provisions set forth
in the Executive Severance Agreement, entered into by and between the
Company and the Executive on , setting forth the terms and
provisions with respect to the Executive's entitlement to payments and
benefits following a Change in Control of the Company.
NOW THEREFORE, to assure the Company that it will have the
continued dedication of the Executive and the availability of [his/her] advice
and counsel notwithstanding the possibility, threat, or occurrence of a Change
in Control of the Company, and to induce the Executive to remain in the
employ of the Company, and for other good and valuable consideration, the
Company and the Executive agree as follows:
Article 1. Establishment, Term, and Purpose
This Agreement will commence on the Effective Date and shall continue in
effect for three (3) full calendar years. However, at the end of such three
<PAGE>
(3) year period and, if extended, at the end of each additional year
thereafter, the term of this Agreement shall be extended automatically for
one (1) additional year, unless the Committee delivers written notice six
(6) months prior to the end of such term, or extended term, to each
Executive, that the Agreement will not be extended. In such case, the
Agreement will terminate at the end of the term, or extended term, then in
progress.
However, in the event a Change in Control occurs during the original or
any extended term, this Agreement will remain in effect for the longer of:
(i) twenty-four (24) months beyond the month in which such Change in
Control occurred; or (ii) until all obligations of the Company hereunder
have been fulfilled, and until all benefits required hereunder have been
paid to the Executive.
Article 2. Definitions
Whenever used in this Agreement, the following terms shall have the
meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized.
2.1 "Base Salary" means the salary of record paid to an Executive as
annual salary, excluding amounts received under incentive or other
bonus plans, whether or not deferred.
2.2 "Beneficial Owner" shall have the meaning ascribed to such term
in Rule 13d-3 of the General Rules and Regulations under the
Exchange Act.
2.3 "Beneficiary" means the persons or entities designated or deemed
designated by the Executive pursuant to Section 11.2 herein.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means: (a) the Executive's willful and continued failure to
substantially perform [his/her] duties with the Company (other than
any such failure resulting from Disability or occurring after
issuance by the Executive of a Notice of Termination for Good
Reason), after a written demand for substantial performance is
delivered to the Executive that specifically identifies the manner
in which the Company believes that the Executive has willfully
failed to substantially perform [his/her] duties, and after the
Executive has failed to resume substantial performance of [his/her]
duties on a continuous basis within fourteen (14) calendar days of
receiving such demand; (b) the Executive's willfully engaging in
conduct (other than conduct covered under (a) above) which is
demonstrably and materially injurious to the Company, monetarily or
otherwise; or (c) the Executive's having been convicted of a felony.
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For purposes of this subparagraph, no act, or failure to act, on the
Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive not in good faith and without
reasonable belief that the action or omission was in the best
interests of the Company.
2.6 "Change in Control" of the Company means an occurrence of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act.
Without limiting the inclusiveness of the definition in the
preceding sentence, a Change in Control of the Corporation shall be
deemed to have occurred as of the first day that any one or more of
the following conditions is satisfied:
(a) Any Person is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty-five percent (25%)
or more of the combined voting power of the Company's then
outstanding securities; or
(b) The failure at any time of the Continuing Directors to
constitute at least a majority of the Board of Directors of the
Company; and for this purpose, the term "Continuing Directors"
means the individuals who were either (i) first elected or
appointed as a director prior to the Effective Date, or (ii)
subsequently appointed as a director, if appointed or nominated
by at least a majority of the Continuing Directors in office at
the time of the nomination or appointment, but specifically
excluding any individual whose initial assumption of office
occurs as a result of either an actual or threatened election
contest (as the term is used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board of Directors; or
(c) Any of the following occur:
(i) Any merger or consolidation of the Company, other than a
merger or consolidation in which the voting securities of
the Company immediately prior to the merger or consolidation
continue to represent (either by remaining outstanding or
being converted into securities of the surviving entity)
sixty percent (60%) or more of the combined voting power of
the Company or surviving entity immediately after the merger
or consolidation with another entity;
(ii) Any sale, exchange, lease, mortgage, pledge, transfer, or
other disposition (in a single transaction or a series
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of related transactions) of assets or earning power
aggregating more than fifty percent (50%) of the assets
or earning power of the Company on a consolidated basis;
(iii) Any liquidation or dissolution of the Company;
(iv) Any reorganization, reverse stock split, or recapitalization
of the Company which would result in a Change in Control as
otherwise defined herein; or
(v) Any transaction or series of related transactions having,
directly or indirectly, the same effect as any of the
foregoing.
2.7 "Code" means the United States Internal Revenue Code of 1986,
as amended.
2.8 "Committee" means the Personnel Committee of the Board or any other
committee appointed by the Board to perform the functions of the
Personnel Committee.
2.9 "Company" means Old Kent Financial Corporation, or any successor
thereto as provided in Article 11 herein.
2.10 "Disability" means that, as a result of the Executive's incapacity
due to physical or mental illness, the Executive shall have been
absent from the full-time performance of [his/her] duties with the
Company for twelve (12) consecutive months and, within thirty (30)
calendar days after written notice of suspension due to Disability
is given, the Executive shall not have returned to the full-time
performance of his duties.
2.11 "Effective Date" means the date of this Agreement set forth above.
2.12 "Effective Date of Termination" means the date on which a Qualifying
Termination occurs which triggers the payment of Severance Benefits
hereunder.
2.13 "Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
2.14 "Good Reason" shall mean, without the Executive's express written
consent, the occurrence of any one or more of the following:
(a) The assignment of the Executive to duties materially
inconsistent with the Executive's authorities, duties,
responsibilities, and status (including offices, titles, and
reporting requirements) as an employee of the Company, or a
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reduction or alteration in the nature or status of the
Executive's authorities, duties, or responsibilities from those
in effect during the immediately preceding fiscal year;
(b) The Company's requiring the Executive to be based at a location
which is at least fifty (50) miles further from the current
primary residence than is such residence from the Company's
current headquarters, except for required travel on the
Company's business to an extent substantially consistent with
the Executive's business obligations as of the Effective Date;
(c) A reduction by the Company in the Executive's Base Salary as in
effect on the Effective Date or as the same shall be increased
from time to time;
(d) A material reduction in the Executive's level of participation
in any of the Company's short- and/or long-term incentive
compensation plans, or employee benefit or retirement plans,
policies, practices, or arrangements in which the Executive
participates as of the Effective Date; provided, however, that
reductions in the levels of participation in any such plans
shall not be deemed to be "Good Reason" if the Executive's
reduced level of participation in each such program remains
substantially consistent with the average level of participation
of other executives who have positions commensurate with the
Executive's position;
(e) The failure of the Company to obtain a satisfactory agreement
from any successor to the Company to assume and agree to perform
this Agreement, as contemplated in Article 10 herein; or
(f) Any termination of Executive's employment by the Company that is
not effected pursuant to a Notice of Termination.
The existence of Good Reason shall not be affected by the
Executive's incapacity due to physical or mental illness. The
Executive's continued employment shall not constitute a waiver of
the Executive's rights with respect to any circumstance constituting
Good Reason.
2.15 "Person" shall have the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and
14(d) thereof, including a "group" as provided in Section 13(d).
2.16 "Potential Change in Control" means the Company's entering into, or
the Board of Directors authorizing, an agreement, the consummation
of which would result in the occurrence of a Change in Control; or
(ii) adoption by the Board of Directors of a resolution of the
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effect that, for purposes of this Agreement, a Potential Change in
Control has occurred.
2.17 "Qualifying Termination" means any of the events described in
Section 3.2 herein, the occurrence of which triggers the payment of
Severance Benefits hereunder.
2.18 "Retirement" shall mean Early, Normal, or Late Retirement as defined
in the Old Kent Retirement Income Plan.
2.19 "Severance Benefits" means the payment of severance compensation as
provided in Section 3.3 herein.
2.20 "Trust" means the Company grantor trust to be created pursuant to
Article 6 of this Agreement.
Article 3. Severance Benefits
3.1 RIGHT TO SEVERANCE BENEFITS. The Executive shall be entitled to
receive from the Company Severance Benefits, as described in Section 3.3
herein, if there has been a Change in Control of the Company and if, within
the six (6) full calendar month period prior to the effective date of a
Change in Control, or within twenty-four (24) calendar months following the
effective date of a Change in Control, the Executive's employment with the
Company shall end for any reason specified in Section 3.2 herein.
The Executive shall not be entitled to receive Severance Benefits if
[he/she] is terminated for Cause, or if [his/her] employment with the
Company ends due to death or Disability, or due to a voluntary termination
of employment by the Executive without Good Reason.
3.2 QUALIFYING TERMINATION. The occurrence of any one or more of the
following events within the six (6) full calendar month period prior to the
effective date of a Change in Control, or within twenty-four (24) calendar
months following the effective date of a Change in Control of the Company
shall trigger the payment of Severance Benefits to the Executive under this
Agreement:
(a) An involuntary termination of the Executive's employment by the
Company for reasons other than Cause;
(b) A voluntary termination by the Executive for Good Reason;
(c) A successor company fails or refuses to assume the Company's
obligations under this Agreement, as required by Article 10
herein; or
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(d) The Company or any successor company breaches any of the
provisions of this Agreement.
3.3 DESCRIPTION OF SEVERANCE BENEFITS. In the event the Executive
becomes entitled to receive Severance Benefits, as provided in Sections 3.1
and 3.2 herein, the Company shall pay to the Executive and provide
[him/her] with the following:
(a) An amount equal to one (1) times the highest rate of the
Executive's annualized Base Salary rate in effect at any time up
to and including the Effective Date of Termination.
(b) An amount equal to one (1), times the greater of: (i) the
Executive's average annual bonus earned over the three (3) full
fiscal years prior to the Effective Date of Termination; or (ii)
the Executive's target annual bonus established for the bonus
plan year in which the Executive's Effective Date of Termination
occurs.
(c) An amount equal to the Executive's unpaid Base Salary and
accrued vacation pay through the Effective Date of Termination.
(d) An amount equal to the Executive's unpaid targeted annual bonus,
established for the plan year in which the Executive's Effective
Date of Termination occurs, multiplied by a fraction, the
numerator of which is the number of days completed in the then-
existing fiscal year through the Effective Date of Termination,
and the denominator of which is three hundred sixty-five (365).
(e) A continuation of the welfare benefits of health care, life
accidental death and dismemberment, and disability insurance
coverage for one (1) full year after the Effective Date of
Termination. These benefits shall be provided to the Executive
at the same premium cost, and at the same coverage level, as in
effect as of the Executive's Effective Date of Termination.
However, in the event the premium cost and/or level of coverage
shall change for all employees of the Company, the cost and/or
coverage level, likewise, shall change for each Executive in a
corresponding manner. The continuation of these welfare benefits
shall be discontinued prior to the end of the one (1) year period
in the event the Executive has available substantially similar
benefits from a subsequent employer, as determined by the Committee.
(f) A lump-sum cash payment of the actuarial present value
equivalent of the aggregate benefits accrued by the Executive as
of the Effective Date of Termination under the Old Kent
Executive Retirement Income Plan. For this purpose, such
benefits shall be calculated under the assumption that the
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Executive's employment continued following the Effective Date of
Termination for one (1) full year (i.e., one (1) additional year
of age and service credits shall be added); provided, however,
that for purposes of determining "final average pay" under such
programs, the Executive's actual pay history as of the effective
date of termination shall be used.
(g) A lump-sum cash payment of the entire balance of the Executive's
compensation which has been deferred under the Old Kent Deferred
Compensation Plan, the Old Kent Executive Thrift Plan, and the
Old Kent Deferred Stock Compensation Plan, as applicable,
together with all interest that has been credited with respect
to any such deferred compensation balances pursuant to the terms
of the applicable plan.
3.4 TERMINATION FOR DISABILITY. Following a Change in Control of the
Company, if an Executive's employment is terminated due to Disability, the
Executive shall receive [his/her] Base Salary through the Effective Date of
Termination, at which point in time the Executive's benefits shall be
determined in accordance with the Company's disability, retirement,
insurance, and other applicable plans and programs then in effect.
3.5 TERMINATION FOR RETIREMENT OR DEATH. Following a Change in Control
of the Company, if the Executive's employment is terminated by reason of
[his/her] Retirement or death, the Executive's benefits shall be determined
in accordance with the Company's retirement, survivor's benefits,
insurance, and other applicable programs of the Company then in effect.
3.6 TERMINATION FOR CAUSE, OR OTHER THAN FOR GOOD REASON OR RETIREMENT.
Following a Change in Control of the Company, if the Executive's employment
is terminated either: (a) by the Company for Cause; or (b) by the
Executive (other than for Retirement) and other than for Good Reason, the
Company shall pay the Executive [his/her] full Base Salary and accrued
vacation through the Effective Date of Termination, at the rate then in
effect, plus all other amounts to which the Executive is entitled under any
compensation plans of the Company, at the time such payments are due, and
the Company shall have no further obligations to the Executive under this
Agreement.
3.7 NOTICE OF TERMINATION. Any termination by the Company for Cause or
by the Executive for Good Reason shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination"
shall mean a written notice which shall indicate the specific termination
provision in this Agreement relied upon, and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
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Article 4. Form and Timing of Severance Benefits
4.1 FORM AND TIMING OF SEVERANCE BENEFITS. The Severance Benefits
described in Sections 3.3(a), 3.3(b), 3.3(c), 3.3(d), 3.3(f), and 3.3(g)
herein shall be paid in cash to the Executive in a single lump sum as soon
as practicable following the Effective Date of Termination, but in no event
beyond thirty (30) days from such date.
4.2 WITHHOLDING OF TAXES. The Company shall be entitled to withhold from
any amounts payable under this Agreement all taxes as legally shall be
required (including, without limitation, any United States federal taxes
and any other state, city, or local taxes).
Article 5. Excise Tax Equalization Payment
5.1 EXCISE TAX EQUALIZATION PAYMENT. In the event that the Executive
becomes entitled to Severance Benefits or any other payment or benefit
under this Agreement, or under any other agreement with or plan of the
Company (in the aggregate, the "Total Payments"), if all or any part of the
Total Payments will be subject to the tax (the "Excise Tax") imposed by
Section 4999 of the Code (or any similar tax that may hereafter be
imposed), the Company shall pay to the Executive in cash an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive after deduction of any Excise Tax upon the Total Payments and any
federal, state, and local income tax, penalties, interest, and Excise Tax
upon the Gross-Up Payment provided for by this Section 5.1 (including FICA
and FUTA), shall be equal to the Total Payments. Such payment shall be made
by the Company to the Executive as soon as practical following the
effective date of termination, but in no event beyond thirty (30) days from
such date.
5.2 TAX COMPUTATION. For purposes of determining whether any of the
Total Payments will be subject to the Excise Tax and the amounts of such
Excise Tax:
(a) Any other payments or benefits received or to be received by the
Executive in connection with a Change in Control of the Company
or the Executive's termination of employment (whether pursuant
to the terms of this Agreement or any other plan, arrangement,
or agreement with the Company, or with any Person whose actions
result in a Change in Control of the Company or any Person
affiliated with the Company or such Persons) shall be treated as
"parachute payments" within the meaning of Section 280G(b)(2) of
the Code, and all "excess parachute payments" within the meaning
of Section 280G(b)(1) shall be treated as subject to the Excise
Tax, unless in the opinion of tax counsel as supported by the
Company's independent auditors and acceptable to the Executive,
such other payments or benefits (in whole or in part) do not
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constitute parachute payments, or unless such excess parachute
payments (in whole or in part) represent reasonable compensation
for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the base amount within the
meaning of Section 280G(b)(3) of the Code, or are otherwise not
subject to the Excise Tax;
(b) The amount of the Total Payments which shall be treated as
subject to the Excise Tax shall be equal to the lesser of: (i)
the total amount of the Total Payments; or (ii) the amount of
excess parachute payments within the meaning of
Section 280G(b)(1) (after applying clause (a) above); and
(c) The value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance with the principles of
Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year in which the
Gross-Up Payment is to be made, and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the
Executive's residence on the Effective Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from
deduction of such state and local taxes.
5.3 SUBSEQUENT RECALCULATION. In the event the Internal Revenue Service
adjusts the computation of the Company under Section 5.2 herein so that the
Executive did not receive the greatest net benefit, the Company shall
reimburse the Executive for the full amount necessary to make the Executive
whole, plus a market rate of interest, as determined by the Committee.
Article 6. Establishment of Trust
As soon as practicable following the Effective Date hereof, the Company
shall create a Trust (which shall be an irrevocable grantor trust within
the meaning of Sections 671-678 of the Internal Revenue Code) for the
benefit of the Executive and Beneficiaries, as appropriate. The Trust shall
have a Trustee as selected by the Company, and shall have certain
restrictions as to the Company's ability to amend the Trust or cancel
benefits provided thereunder. Any assets contained in the Trust shall, at
all times, be specifically subject to the claims of the Company's general
creditors in the event of bankruptcy or insolvency; such terms to be
specifically defined within the provisions of the Trust, along with the
required procedure for notifying the Trustee of any bankruptcy or
insolvency.
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At any time following the Effective Date hereof, the Company may deposit
assets in the Trust in an amount equal to or less than the aggregate
Severance Benefits which may become due to the Executive under Sections
3.1, 3.2, and 5.1 of this Agreement.
Upon the first to occur of a Potential Change in Control or Change in
Control, the Company shall deposit assets in such Trust in an amount equal
to the aggregate Severance Benefits which may become due to the Executive
under Sections 3.1, 3.2, and 5.1 of this Agreement, except to the extent
that assets equal to any Severance Benefits payable pursuant to Sections
3.3(f) or 3.3(g) are held in or required to be deposited in a separate
grantor trust which is in effect as of the Potential Change in Control or
Change in Control, as applicable.
Article 7. The Company's Payment Obligation
The Company's obligation to make the payments and the arrangements
provided for herein shall be absolute and unconditional, and shall not be
affected by any circumstances, including, without limitation, any offset,
counterclaim, recoupment, defense, or other right which the Company may
have against the Executive or anyone else. All amounts payable by the
Company hereunder shall be paid without notice or demand. Each and every
payment made hereunder by the Company shall be final, and the Company shall
not seek to recover all or any part of such payment from the Executive or
from whomsoever may be entitled thereto, for any reasons whatsoever.
The Executive shall not be obligated to seek other employment in
mitigation of the amounts payable or arrangements made under any provision
of this Agreement, and the obtaining of any such other employment shall in
no event effect any reduction of the Company's obligations to make the
payments and arrangements required to be made under this Agreement, except
to the extent provided in Section 3.3(e) herein.
Article 8. Legal Remedies
8.1 PAYMENT OF LEGAL FEES. To the extent permitted by law, the Company
shall pay all legal fees, costs of litigation, prejudgment interest, and
other expenses incurred in good faith by the Executive as a result of the
Company's refusal to provide the Severance Benefits to which the Executive
becomes entitled under this Agreement, or as a result of the Company's
contesting the validity, enforceability, or interpretation of this
Agreement, or as a result of any conflict between the parties pertaining to
this Agreement; provided, however, that the Company shall be reimbursed by
the Executive for all such fees and expenses in the event the Executive
fails to prevail with respect to any one material issue of dispute in
connection with such legal action.
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8.2 ARBITRATION. The Executive shall have the right and option to elect
(in lieu of litigation) to have any dispute or controversy arising under or
in connection with this Agreement settled by arbitration, conducted before
a panel of three (3) arbitrators sitting in a location selected by the
Executive within fifty (50) miles from the location of his employment with
the Company, in accordance with the rules of the American Arbitration
Association then in effect.
Judgment may be entered on the award of the arbitrator in any court
having proper jurisdiction. All expenses of such arbitration, including the
fees and expenses of the counsel for the Executive, shall be borne by the
Company; provided, however, that the Company shall be reimbursed by the
Executive for all such fees and expenses in the event the Executive fails
to prevail with respect to any one material issue of dispute in connection
with such legal action.
Article 9. Outplacement Assistance
Following a Qualifying Termination (as described in Section 3.2 herein),
the Executive shall be reimbursed by the Company for the costs of all
outplacement services obtained by the Executive within the two (2) year
period after the effective date of termination; provided, however, that the
total reimbursement shall be limited to an amount equal to fifteen percent
(15%) of the Executive's Base Salary as of the effective date of
termination.
Article 10. Successors and Assignment
10.1 SUCCESSORS TO THE COMPANY. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation, or
otherwise) of all or substantially all of the business and/or assets of the
Company or of any division or subsidiary thereof to expressly assume and
agree to perform the Company's obligations under this Agreement in the same
manner and to the same extent that the Company would be required to perform
them if no such succession had taken place. Failure of the Company to
obtain such assumption and agreement prior to the effective date of any
such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the
same terms as [he/she] would be entitled to hereunder if they had
terminated [his/her] employment with the Company voluntarily for Good
Reason. Except for the purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Effective
Date of Termination.
10.2 ASSIGNMENT BY THE EXECUTIVE. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If the Executive dies while any
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amount would still be payable to [him/her] hereunder had [he/she] continued
to live, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's
Beneficiary. If the Executive has not named a Beneficiary, then such
amounts shall be paid to the Executive's devisee, legatee, or other
designee, or if there is no such designee, to the Executive's estate.
Article 11. Miscellaneous
11.1 EMPLOYMENT STATUS. Except as may be provided under any other
agreement between the Executive and the Company, the employment of the
Executive by the Company is "at will," and, prior to the effective date of
a Change in Control, may be terminated by either the Executive or the
Company at any time, subject to applicable law.
11.2 BENEFICIARIES. The Executive may designate one or more persons or
entities as the primary and/or contingent Beneficiaries of any Severance
Benefits owing to the Executive under this Agreement. Such designation must
be in the form of a signed writing acceptable to the Committee. The
Executive may make or change such designations at any time.
11.3 SEVERABILITY. In the event any provision of this Agreement shall be
held illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of the Agreement, and the Agreement shall be
construed and enforced as if the illegal or invalid provision had not been
included. Further, the captions of this Agreement are not part of the
provisions hereof and shall have no force and effect.
11.4 MODIFICATION. No provision of this Agreement may be modified,
waived, or discharged unless such modification, waiver, or discharge is
agreed to in writing and signed by the Executive and by an authorized
member of the Committee, or by the respective parties' legal
representatives and successors.
11.5 APPLICABLE LAW. To the extent not preempted by the laws of the
United States, the laws of the state of Michigan shall be the controlling
law in all matters relating to this Agreement.
OLD KENT FINANCIAL CORPORATION
By_____________________________________
Its__________________________________
"Employee"
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<PAGE>
PARTICIPANT SCHEDULE
As of December 31, 1998, each of the following officers have
entered into an Executive Severance Agreement identical to the form set
forth in this Exhibit 10.24.
Richard L. Haug
Janet S. Nisbett
Albert T. Potas
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<PAGE>
EXHIBIT 10.25
INDEMNITY AGREEMENT
As of February 28, 1999, 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 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
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, 1998
(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
