Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
OLD KENT FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
__________________
| Michigan |
38-1986608 |
| (State or Other Jurisdiction of |
(I.R.S. Employer |
| Incorporation or Organization) |
Identification Number) |
| |
|
| |
|
| 111 Lyon Street, N.W., Grand Rapids, Michigan |
49503 |
| (Address of Principal Executive Offices) |
(Zip Code) |
STOCK OPTION PLAN FOR HOLDERS OF
UNEXERCISED OPTIONS UNDER THE
CFSB BANCORP, INC. 1994 STOCK OPTION
AND INCENTIVE PLAN AND THE CFSB
BANCORP, INC. 1990 STOCK OPTION PLAN
(Full Title of the Plan)
| Mary E. Tuuk |
Copies to: |
Gordon R. Lewis |
| Senior Vice President |
|
Warner Norcross & Judd LLP |
| and Secretary |
|
900 Old Kent Building |
| Old Kent Financial Corporation |
|
111 Lyon Street, N.W. |
| 111 Lyon Street, N.W. |
|
Grand Rapids, Michigan 49503-2487 |
| Grand Rapids, Michigan 49503-2487 |
|
|
(Name and Address of Agent for Service)
(616) 771-5272
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
Title of
Securities to be
Registered |
Amount to be
Registered |
Proposed
Maximum
Offering Price
Per Share (1) |
Proposed
Maximum
Aggregate
Offering Price (1) |
Amount of
Registration Fee |
Common Stock,
$1 Par Value |
122,001 shares(2) |
$42.3125(3) |
$5,162,167.30(3) |
$1,435.08 |
(1) On July 2, 1999, the average of the high and low prices of the Common Stock of Old Kent Financial
Corporation was $42.3125 per share. The registration fee is computed in accordance with Rule 457(h) and (c).
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities Act"), this
registration
statement also covers such indeterminate number of additional shares as may be authorized in
the event of an
adjustment as a result of an increase in the number of issued shares of Common Stock
resulting from the payment of stock dividends or stock splits or certain other capital adjustments.
(3) Estimated solely for the purpose of calculating the registration fee.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission
are incorporated in this registration statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act").
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report referred to
in (a) above.
(c) The description of the Registrant's common stock, $1 par value,
which is contained in the Registrant's Form 8-A registration statement filed under the
Exchange Act on November 2, 1998, and the description of the Registrant's preferred
stock purchase rights, which is contained in the Registrant's Registration Statement on
Form 8-A/A filed under the Exchange Act on December 31, 1998, including any
amendment or report filed for the purpose of updating either of such descriptions.
All documents subsequently filed by the Registrant (also referred to as "Old
Kent") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment that indicates that all securities offered have been sold or that
deregisters all securities remaining unsold shall be deemed to be incorporated by reference in
this registration statement and to be a part of this registration statement from the date of filing
of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
1
Item 6. Indemnification of Directors and Officers.
Under Sections 561 through 571 of the Michigan Business Corporation Act (the "MBCA"),
directors and officers of a Michigan corporation may be entitled to indemnification by the
corporation against judgments, expenses, fines and amounts paid by the director or officer in
settlement of claims brought against them by third persons or by or in the right of the
corporation if those directors and officers acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interests of the corporation or its shareholders.
Old Kent is obligated under its Restated Articles of Incorporation to indemnify its directors
and executive officers to the full extent permitted under the MBCA. Old Kent may similarly
indemnify persons who are not directors or executive officers to the extent authorized by Old
Kent's Board of Directors.
The MBCA provides for indemnification of directors and officers if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the best interests of
Old Kent or its shareholders (and, if a criminal proceeding, if they had no reasonable cause to
believe their conduct was unlawful) against: (a) expenses (including attorneys' fees),
judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed action, suit or proceeding (other than an
action by or in the right of Old Kent) arising out of a position with Old Kent (or with some
other entity at Old Kent's request); and (b) expenses (including attorneys' fees) and amounts
paid in settlement actually and reasonably incurred in connection with any threatened, pending
or completed action, suit or proceeding by or in the right of Old Kent, unless the director or
officer is found liable to Old Kent, provided that an appropriate court could determine that he
or she is nevertheless fairly and reasonably entitled to indemnity for reasonable expenses
incurred. The MBCA requires indemnification for expenses to the extent that a director or
officer is successful in defending against any such action, suit or proceeding.
The MBCA generally requires that the indemnification provided for in (a) and (b) above be
made only on a determination that the director or officer met the applicable standard of
conduct by a majority vote of a quorum of the board of directors who were not parties or
threatened to be made parties to the action, suit or proceeding, by a majority vote of a
committee of not less than two disinterested directors, by independent legal counsel, by all
independent directors not parties or threatened to be made parties to the action, suit or
proceeding, or by the shareholders. If the articles of incorporation include a provision
eliminating or limiting the liability of a director, however, a corporation may indemnify a
director for certain expenses and liabilities without a determination that the director met the
applicable standards of conduct, unless the director received a financial benefit to which he or
she was not entitled, intentionally inflicted harm on the corporation or its shareholders,
violated Section 551 of the MBCA, or intentionally committed a criminal act. In connection
with an action by or in the right of the corporation, such indemnification may be for expenses
(including attorneys' fees) actually and reasonably incurred. In connection with an action, suit
2
or proceeding other than an action, suit or proceeding by or in the right of the corporation,
such indemnification may be for expenses (including attorneys' fees) actually and reasonably
incurred, and for judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred.
In certain circumstances, the MBCA further permits advances to cover such expenses
before a final determination that indemnification is permissible or required, upon receipt of a
written affirmation by the director or officer of his or her good faith belief that he or she has
met the applicable standard of conduct and an undertaking, which need not be secured and
which may be accepted without reference to the financial ability of the person to make
repayment, by or on behalf of the director or officer to repay such amounts if it shall
ultimately be determined that he or she has not met the applicable standard of conduct. If a
provision in the articles of incorporation or bylaws, a resolution of the board or shareholders,
or an agreement makes indemnification mandatory, then the advancement of expenses is also
mandatory, unless the provision, resolution or agreement specifically provides otherwise.
Indemnification under the MBCA is not exclusive of other rights to indemnification to
which a person may be entitled under Old Kent's Restated Articles of Incorporation, Bylaws or
a contractual agreement. However, the total amount of expenses advanced or indemnified
from all sources may not exceed the amount of actual expenses incurred by the person seeking
indemnification or advancement of expenses. The indemnification provided for under the
MBCA continues as to a person who ceases to be a director or executive officer.
The MBCA permits Old Kent to purchase insurance on behalf of its directors and officers
against liabilities arising out of their positions with Old Kent, whether or not such liabilities
would be within the above indemnification provisions. Pursuant to this authority, Old Kent
maintains such insurance on behalf of its directors and officers.
Old Kent has entered into indemnity agreements with each of its directors. The agreements
provide that Old Kent will indemnify the director, subject to certain limitations, for expenses
and costs, including the satisfaction of a judgment, fine or penalty incurred in, or in any
amount paid in settlement of, any proceeding, including a proceeding brought by or in the
name of Old Kent (such as a shareholder derivative suit), brought by reason of the fact that the
indemnitee was serving as a director, officer, employee, agent or fiduciary of Old Kent or by
reason of any action taken by the indemnitee while serving as a director, officer, employee,
agent or fiduciary of Old Kent, or by reason of the fact that the indemnitee was serving at the
request of Old Kent in a similar capacity with another entity, if such expenses and costs may
be indemnified under the MBCA. In accordance with Old Kent's Restated Articles and
Bylaws, the agreements are designed to provide the maximum protection allowed under federal
and Michigan law. Indemnification is dependent upon the director meeting the applicable
standards of conduct set forth in the indemnity agreements.
3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits have been filed as part of this registration statement:
Exhibit
Number |
Document |
| |
|
| 4(a) |
Restated Articles of Incorporation. Previously filed as Exhibit 3(1) to the
Registrant's Form S-4 Registration Statement (No. 333-56209) filed June 5,
1998, and incorporated herein by reference. |
| |
|
| 4(b) |
Bylaws. Previously filed as Exhibit 3(b) to the Registrant's Form 8-K Current
Report dated March 15, 1999, and incorporated herein by reference. |
| |
|
| 4(c) |
Rights Agreement. Previously filed as an exhibit to the Registrant's Form 8-A/A Registration Statement dated December 30, 1998, and incorporated herein
by reference. |
| |
|
| 4(d) |
Certificate of Designation, Preferences, and Rights of Series C Preferred Stock.
Previously filed as an exhibit to the Registrant's Form 8-K filed March 5, 1997,
and incorporated herein by reference. |
| |
|
| 4(e) |
Stock Option Plan For Holders of Unexercised Options Under the CFSB
Bancorp, Inc. 1994 Stock Option and Incentive Plan and the CFSB Bancorp,
Inc. 1990 Stock Option Plan. |
| |
|
| 5 |
Opinion Regarding Legality of Securities Offered. |
| |
|
| 23(a) |
Consent of Warner Norcross & Judd LLP--Included in Exhibit 5 and
incorporated herein by reference. |
| |
|
| 23(b) |
Consent of Independent Public Auditors. |
| |
|
| 24 |
Powers of Attorney. |
4
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereto) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a new registration
5
statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on
Form S-8 and has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Grand Rapids, State of Michigan, on
this 2nd day of July, 1999.
| |
OLD KENT FINANCIAL CORPORATION |
| |
|
| |
|
| |
By /s/ Mary E. Tuuk |
| |
Mary E. Tuuk |
| |
Senior Vice President and Secretary |
| |
|
| |
|
| |
By */s/ Mark F. Furlong |
| |
Mark F. Furlong |
| |
Executive Vice President and Chief Financial |
| |
Officer (Principal Financial and Accounting |
| |
Officer) |
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the date indicated.
| Signature |
Title |
Date |
| |
|
|
| */s/Richard L. Antonini |
Director |
July 2, 1999 |
| Richard L. Antonini |
|
|
| |
|
|
| */s/John D. Boyles |
Director |
July 2, 1999 |
| John D. Boyles |
|
|
| |
|
|
| */s/William P. Crawford |
Director |
July 2, 1999 |
| William P. Crawford |
|
|
| |
|
|
| |
Director |
July ___, 1999 |
| Richard M. DeVos, Jr. |
|
|
| |
|
|
7
| Signature |
Title |
Date |
| |
|
|
| */s/William G. Gonzalez |
Director |
July 2, 1999 |
| William G. Gonzalez |
|
|
| |
|
|
| */s/James P. Hackett |
Director |
July 2, 1999 |
| James P. Hackett |
|
|
| |
|
|
| */s/Erina Hanka |
Director |
July 2, 1999 |
| Erina Hanka |
|
|
| |
|
|
| */s/Michael J. Jandernoa |
Director |
July 2, 1999 |
| Michael J. Jandernoa |
|
|
| |
|
|
| */s/Kevin T. Kabat |
Vice Chairman |
July 2, 1999 |
| Kevin T. Kabat |
and Director |
|
| |
|
|
| */s/Fred P. Keller |
Director |
July 2, 1999 |
| Fred P. Keller |
|
|
| |
|
|
| */s/John P. Keller |
Director |
July 2, 1999 |
| John P. Keller |
|
|
| |
|
|
| */s/Hendrik G. Meijer |
Director |
July 2, 1999 |
| Hendrik G. Meijer |
|
|
| |
|
|
| */s/Percy A. Pierre, Ph.D. |
Director |
July 2, 1999 |
| Percy A. Pierre, Ph.D. |
|
|
| |
|
|
| */s/Marilyn J. Schlack |
Director |
July 2, 1999 |
| Marilyn J. Schlack |
|
|
| |
|
|
8
| Signature |
Title |
Date |
| |
|
|
| */s/Peter F. Secchia |
Director |
July 2, 1999 |
| Peter F. Secchia |
|
|
| |
|
|
| */s/David J. Wagner |
Chairman of the Board, |
July 2, 1999 |
| David J. Wagner |
President, Chief Executive |
|
| |
Officer and Director |
|
| |
(Principal Executive Officer) |
|
| |
|
|
| */s/Margaret Sellers Walker |
Director |
July 2, 1999 |
| Margaret Sellers Walker |
|
|
| |
|
|
| */s/Robert H. Warrington |
Vice Chairman and Director |
July 2, 1999 |
| Robert H. Warrington |
|
|
| |
|
|
| *By /s/Mary E. Tuuk |
|
July 2, 1999 |
| Mary E. Tuuk |
|
|
| Attorney-in-Fact |
|
|
9
EXHIBIT INDEX
Exhibit
Number |
Document |
| |
|
| 4(a) |
Restated Articles of Incorporation. Previously filed as Exhibit 3(1) to the
Registrant's Form S-4 Registration Statement (No. 333-56209) filed June 5,
1998, and incorporated herein by reference. |
| |
|
| 4(b) |
Bylaws. Previously filed as Exhibit 3(b) to the Registrant's Form 8-K Current
Report dated March 15, 1999, and incorporated herein by reference. |
| |
|
| 4(c) |
Rights Agreement. Previously filed as an exhibit to the Registrant's Form 8-A/A Registration Statement dated December 30, 1998, and incorporated herein
by reference. |
| |
|
| 4(d) |
Certificate of Designation, Preferences, and Rights of Series C Preferred Stock.
Previously filed as an exhibit to the Registrant's Form 8-K filed March 5, 1997,
and incorporated herein by reference. |
| |
|
| 4(e) |
Stock Option Plan For Holders of Unexercised Options Under the CFSB
Bancorp, Inc. 1994 Stock Option and Incentive Plan and the CFSB Bancorp,
Inc. 1990 Stock Option Plan. |
| |
|
| 5 |
Opinion Regarding Legality of Securities Offered. |
| |
|
| 23(a) |
Consent of Warner Norcross & Judd LLP--Included in Exhibit 5 and
incorporated herein by reference. |
| |
|
| 23(b) |
Consent of Independent Public Auditors. |
| |
|
| 24 |
Powers of Attorney. |
