THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED PURSUANT TO
RULE 901(D) OF REGULATION S-T
As filed with the Securities and Exchange Commission on March 30,
1994
REGISTRATION NO. ______________
___________________________________________________________________________
___________________________________________________________________________
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 (IRS Employer
incorporation or organization) Identification No.)
One Vandenberg Center, Grand Rapids, Michigan 49503
(Address of principal executive offices, zip code)
DEFERRED COMPENSATION PLAN
(Full title of the plan)
Richard W. Wroten Gordon R. Lewis
Executive Vice President With Warner, Norcross & Judd
and Chief Financial Officer a copy 900 Old Kent Building
Old Kent Financial CorporationTo: 111 Lyon Street, N.W.
One Vandenberg Center Grand Rapids, Michigan 49503-2489
Grand Rapids, Michigan 49503-2489
(Name and address of agent for service)
(616) 771-5808
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Unit Offering Price Fee
Deferred $2,000,000 N.A. $2,000,000 $689.66
Compensation
Obligations
___________________________________________________________________________
__________________________________________________________________________
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
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
("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.
All documents subsequently filed by the registrant pursuant to
Section 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act, prior
to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which 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.
This registration statement registers the financial obligations
("Deferred Compensation Obligations") of Old Kent Financial Corporation
("Registrant" or "Old Kent") to Participants in the Old Kent Deferred
Compensation Plan (the "Plan"). The Plan is filed as Exhibit 4 to this
registration statement. The description in this Item 4 is a summary only
and is qualified in its entirety by reference to the Plan. Capitalized
terms used in this description are defined in the Plan and shall have the
same meaning in this description.
The Plan is designed to provide supplemental retirement savings
opportunities for a select group of management and highly compensated
employees. The Plan is a nonqualified deferred compensation program
allowing deferral of income in excess of limits applicable to plans
qualified under Section 401(a) of the Internal Revenue Code. Because of
restrictions imposed by ERISA, the Plan is unfunded.
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The Plan permits each Participant, before each year begins,
to elect irrevocably to defer all or any portion of Bonus Compensation.
Each Participant's benefit under the Plan, therefore, will be the sum
of the Participant's bonus deferrals and earnings credits.
A Participant's benefit will be payable upon termination of
employment with the Registrant or any of its subsidiaries employing one or
more Participants in the Plan (individually referred to as a "Participating
Employer") for any reason. At the time of initial participation in the
Plan, each Participant is required to elect irrevocably either a lump sum
payment or a payment in annual installments of up to 10. At the time of
initial participation, a Participant may elect a different form of payment
to a designated beneficiary upon the death of the Participant. The payment
will begin on March 1 following the end of the calendar year in which the
Participant's employment terminates.
The Plan operates through accounting entries on the Registrant's
books. The Registrant establishes an account for each Participant. Each
Participant's bonus deferral is then credited to each Participant's
account. Participants under the Plan are general, unsecured creditors of
the Registrant. No Participant may sell, transfer, assign or alienate the
Registrant's obligations under the Plan.
In addition to the Participant's bonus deferral, each
Participant's account is credited with earnings credits. Each Participant
may elect to have earnings credited to his or her account under the Plan as
if the account balance had been invested, as directed by the Participant,
in any one or combination of certain funds as further described herein.
These funds are invested in various investment vehicles, none of which
involve securities issued by the Registrant.
Pursuant to the terms of the Plan, the Registrant may, but is not
so required, establish a so-called "rabbi" trust. The trust, if
established, will accumulate assets to provide the Registrant with a source
of funds to use in fulfilling its obligations under the Plan. The
Registrant may, from time to time, contribute to the trust such amounts as
shall be reasonably necessary to provide for all benefits payable under the
Plan. The time of payment of any contributions will be determined by the
Registrant.
Old Kent Bank and Trust Company (the "Bank") will serve as
trustee of the trust. Old Kent Bank and Trust Company is a direct wholly-
owned subsidiary of the Registrant. As trustee, the Bank will invest and
reinvest the assets of the trust as the Bank, in its discretion, may deem
appropriate, subject to the terms of the trust agreement. The Bank may,
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but is not required to, invest the trust's assets in the same mutual funds
used by the Registrant to calculate earnings credits under the Plan.
In the event of insolvency of a Participating Employer, the Bank
is required to hold the assets of the trust for the benefit of the general
creditors of the Participating Employer. The chief executive officer and
board of directors of the Participating Employer are required to give
notice to the Bank upon the Participating Employer's insolvency. If the
trustee receives such notice, or receives from any other person claiming to
be a creditor of the Participating Employer, a written allegation that the
Participating Employer is insolvent, the trustee is required to immediately
commence insolvency administration and to independently determine whether
such insolvency exists.
The actual investment success with respect to the assets in the
trust will in no way affect the benefits payable to Participants that have
accrued under the Plan. Earnings credited to Participants' accounts under
the Plan will be calculated on a hypothetical basis based on the rates of
return of any one or combination of certain funds. These funds presently
include:
(1) The Savings Fund which consists of money market mutual
funds and may consist of other investments such as short-term
U.S. Government securities, prime grade commercial paper,
passbook savings accounts, time certificates, saving receipts,
certificates of deposit, and commingled funds invested in similar
assets;
(2) The Diversified Equity Fund which consists of a pooled
stock fund. This fund is invested in a number of common stocks
or securities convertible into common stocks; and
(3) The Short Term Bond Fund which consists of high quality
debt obligations, including money market instruments, and notes
and bonds of domestic corporations, the U.S. Treasury and federal
agencies.
In the near future, a fourth fund, the Balanced Fund, will also
be available for the purpose of determining Participants' earnings credits.
The Balanced Fund consists entirely of the Kent Funds, a group of mutual
funds, and seeks to provide an investment program of long-term growth.
Any profits obtained through investments made by the trust, over
and above the Registrant's obligations under the Plan, will be retained in
the trust to pay the claims of future Participants or the Registrant's
general creditors in the event of insolvency. The Registrant and
Participating Employers, at all times, remains liable for the payment of
benefits to Participants and will be responsible for any difference between
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its obligations under the Plan and funds available in the trust. Upon
direction by the Registrant, the Bank will, from time to time, make payment
out of the funds of the trust to Participants to pay benefits under the
Plan. Alternatively, the Bank will make payment to the Registrant as
reimbursement for the payment of Plan benefits by the Registrant.
The trust agreement provides that Participants' interests in the
trust may not be assigned, seized by legal process, transferred, or subject
to the claims of the Participants' creditors in any way. Any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or
otherwise dispose of benefits payable, before actual receipt of the
benefits or a right to receive benefits, is void and will not be
recognized. The trust agreement also provides that the Participants have
no interest in the assets or the funds of the trust beyond the right to
receive payment of Plan benefits during periods of Participating Employers'
solvency. During the periods of a Participating Employer's insolvency, the
Participants' rights to assets of the trust will not be superior to the
rights of any other general creditors of the Participating Employer.
As of December 31, 1992, the total amount of outstanding Deferred
Compensation Obligations under the Plan was $1,054,133. The total amount
of Deferred Compensation Obligations that may be incurred under the Plan is
not subject to any specific defined limit. The Registrant may amend or
terminate the Plan at any time. Amendment or termination of the Plan may
not reduce or revoke any Deferred Compensation Obligations owed to
Participants at the time of amendment or termination.
Deferred Compensation Obligations are denominated in dollars and
cents in the currency of the United States of America. They are not
certified and not quantified in units or shares.
The Registrant is filing this registration statement because of
uncertainty as to whether Deferred Compensation Obligations would or should
be considered to be securities or to be subject to registration under the
Securities Act of 1933. The filing of this registration statement is not
an admission by the Registrant that Deferred Compensation Obligations are
securities or are subject to the registration requirements of the
Securities Act of 1933.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Old Kent's Restated Articles of Incorporation require
indemnification of Old Kent's directors to the maximum extent permitted by
the Michigan Business Corporation Act. The Restated Articles of
Incorporation vest in Old Kent's board of directors the discretion to
provide the same degree of indemnification to Old Kent's officers on a
case-by-case basis. The following is a summary of the pertinent provisions
of the Michigan Business Corporation Act.
Sections 561-569 of the Michigan Business Corporation Act contain
provisions governing the indemnification of officers and directors by
Michigan corporations. That statute provides that a corporation shall have
the power to indemnify 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 is or was a director, officer, employee, or agent of the
corporation or serving another corporation or other enterprise at the
request of the corporation, against expenses, including attorney fees,
judgments, penalties, fines, and amounts paid in settlement, actually and
reasonably incurred by him in connection with such action, suit, or
proceeding if he acted in good faith and in a manner he 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 conduct was unlawful.
Indemnification of expenses, including attorney fees, is allowed
in derivative actions, except that no indemnification is allowed in respect
of any claim, issue, or matter as to which such person shall have been
found liable to the corporation unless a court decides indemnification is
proper. To the extent any such person succeeds on the merits or otherwise,
he or she is entitled to be indemnified against expenses, including
attorney fees. A determination that the person to be indemnified meets the
applicable standard of conduct may be made by a court, by the board of
directors by a majority vote of a quorum consisting of directors who were
not parties to such action, by a majority vote of a committee designated by
the board of directors consisting of two or more directors not parties to
the action, suit, or proceeding, by independent legal counsel, or by the
shareholders. Expenses may be paid in advance. A corporation may purchase
indemnity insurance.
Old Kent has insurance which provides liability coverage to
directors and officers of Old Kent and its subsidiaries with respect to
claims for any actual or alleged error, misstatement, misleading statement,
act, or omission, or neglect or breach of duty by such directors or
officers in the discharge of their duties solely in their capacity as
directors or officers, individually or collectively, or any matter claimed
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against them solely by reason of their being such directors or officers.
Except for losses for which Old Kent is required to indemnify the directors
or officers, or for which Old Kent has, to the extent permitted by law,
indemnified the directors or officers, this insurance contains customary
exclusions from coverage.
Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed as part of this
registration statement:
4 Old Kent Deferred Compensation Plan
5 Opinion of Counsel
23(a) Consent of Independent Certified Public Accountants
23(b) Consent of Counsel
24 Powers of Attorney
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;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(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;
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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
that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement
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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers, and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the issuer 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 and the
State of Michigan, on March 29, 1994.
OLD KENT FINANCIAL CORPORATION
By /s/ Richard W. Wroten
Richard W. Wroten
Executive Vice President and Chief
Financial Officer (Principal Financial
Officer, Principal Accounting Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Form S-8 Registration Statement has been signed by the following persons in
the capacities indicated.
Date Name and Title
Date: March 29, 1994 /s/ John M. Bissell*
John M. Bissell
Director
Date: March 29, 1994 /s/ John D. Boyles*
John D. Boyles
Director
Date: March 29, 1994 /s/ John C. Canepa*
John C. Canepa
Chairman of the Board,
Chief Executive Officer,
and Director (Principal Executive
Officer)
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Date Name and Title
Date: March 29, 1994 /s/ Earl D. Holton*
Earl D. Holton
Director
Date: March 29, 1994 /s/ Michael J. Jandernoa*
Michael J. Jandernoa
Director
Date: March 29, 1994 /s/ John P. Keller*
John P. Keller
Director
Date: March 29, 1994 /s/ Jerry K. Myers*
Jerry K. Myers
Director
Date: March 29, 1994 /s/ William U. Parfet*
William U. Parfet
Director
Date: March 29, 1994 /s/ Robert L. Sadler*
Robert L. Sadler
Vice Chairman of the Board and
Director
Date: March 29, 1994 /s/ Peter F. Secchia*
Peter F. Secchia
Director
Date: March 29, 1994 /s/ B. P. Sherwood, III*
B. P. Sherwood, III
Vice Chairman of the Board,
Treasurer, and Director
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Date Name and Title
Date: March 29, 1994 /s/ Martha L. Thornton*
Martha L. Thornton
Director
Date: March 29, 1994 /s/ David J. Wagner*
David J. Wagner
President and Director
Date: March 29, 1994 /s/ Richard W. Wroten
Richard W. Wroten
Executive Vice President and Chief
Financial Officer (Principal Financial
Officer, Principal Accounting Officer)
*By /s/ Richard W. Wroten
Richard W. Wroten
(Attorney-in-Fact)
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EXHIBIT INDEX
Page
Number
4 Old Kent Deferred Compensation Plan 13
5 Opinion of Counsel 24
23(a) Consent of Independent Certified Public Accountants 25
23(b) Consent of Counsel (See Exhibit 5) 24
24 Powers of Attorney 26
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EXHIBIT 4
OLD KENT DEFERRED COMPENSATION PLAN
ARTICLE 1
Establishment of Plan
1.1 Establishment of Plan.
Old Kent Financial Corporation ("OKFC") hereby amends and restates
the Old Kent Deferred Compensation Plan, a supplemental nonqualified
deferred compensation plan for a select group of management personnel
employed by OKFC and any subsidiary of OKFC. This plan is intended to be a
plan described in Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
1.2 Effective Date.
The "Effective Date" of this restated plan is January 1, 1990, unless
a provision of this plan specifies a different effective date. Each plan
provision applies until the effective date of an amendment of that
provision.
1.3 Application to Former Participants.
Except to the extent it amends a provision of the plan which applies
to former Participants or expressly states that it is applicable to former
Participants, an amendment to this plan (including changes included in any
restatement of the plan) shall not apply to a former Participant. If a
former Participant returns to employment with the Employer after the
effective date of an amendment and is designated as eligible to
participate by OKFC, the Participant's rights under the plan shall be
determined by the plan provisions as amended and in effect at that time.
ARTICLE 2
Definitions
2.1 Defined Terms.
Defined terms are found at the following locations:
Term Location
Administrator 2.2
Agent for Service of Process 2.3
Term Location
Beneficiary 2.4
Bonus Compensation 4.3
Diversified Equity Fund 5.4(a)(ii)
Effective Date 1.2
Employee 2.5
Employer 2.6
ERISA 1.1
OKFC 1.1
Old Kent Thrift Plan 2.7
Participant 3.1
Plan Year 2.8
Savings Fund 5.4(a)(i)
Short Term Bond Fund 5.4(a)(iii)
Spouse 2.9
Surviving Spouse 2.10
Valuation Date 2.11
Valuation Period 2.12
2.2 Administrator.
"Administrator" means Old Kent Financial Corporation.
2.3 Agent for Service of Process.
"Agent for Service of Process" means the Administrator or the
individual designated by the Administrator.
2.4 Beneficiary.
"Beneficiary" means the individual, trust or other entity designated
by the Participant to receive any benefits payable under this plan after
the Participant's death. A Participant may designate or change a
Beneficiary by filing a signed designation with the Administrator in the
form approved by the Administrator. The Participant's Will is not
effective for this purpose.
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If a designation has not been properly completed and filed with the
Administrator or is ineffective for any other reason, the Beneficiary shall
be the Participant's Surviving Spouse. If there is no effective
designation and the Participant does not have a Surviving Spouse, the
remaining benefits, if any, shall be paid to the Participant's estate.
2.5 Employee.
"Employee" means an individual employed by the Employer who receives
compensation for personal services performed for the Employer that is
subject to withholding for federal income tax purposes.
2.6 Employer.
"Employer" means OKFC and any subsidiary of OKFC.
2.7 Old Kent Thrift Plan.
"Old Kent Thrift Plan" means the qualified, tax-exempt defined
contribution plan established and maintained by Old Kent Financial
Corporation under Sections 401(a) and 401(k) of the Internal Revenue Code
of 1986, as amended.
2.8 Plan Year.
"Plan Year" means the 12-month period beginning each January 1.
2.9 Spouse.
"Spouse" means the husband or wife to whom the Participant is married
on the date the benefit is scheduled to be paid, or payment is scheduled to
begin. The legal existence of the spousal relationship shall be governed
by the law of the state or other jurisdiction of domicile of the
Participant.
2.10 Surviving Spouse.
"Surviving Spouse" means the Spouse of the Participant at the time of
the Participant's death who survives the Participant. If the Participant
and Spouse die under circumstances which prevent ascertainment of the order
of their deaths, it shall be presumed for this plan that the Participant
survived the Spouse.
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2.11 Valuation Date.
"Valuation Date" means the last day of March, June, September and
December.
2.12 Valuation Period.
"Valuation Period" means any quarterly period of three months ending
with the specified Valuation Date.
ARTICLE 3
Participation
3.1 Designation as Participant.
Only management or highly compensated Employees shall be eligible to
participate in this plan.
OKFC shall designate the eligible Employees who shall become
Participants ("Participant") and shall specify the date of participation
for each Participant. Each new Participant must complete the deferral and
election requirements specified in Articles 4 and 7.
3.2 Termination of Participation.
A Participant's status as a Participant shall continue until the
earlier of termination of employment or termination of the Participant's
status as a Participant by OKFC. A former Participant may resume
participation in the plan only upon redesignation as a Participant and as
of the date specified by OKFC. Transfer of employment to OKFC or any
subsidiary of OKFC shall not be treated as termination of employment and
participation in this plan shall continue unless the Participant's status
as a Participant is terminated by OKFC.
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ARTICLE 4
Bonus Deferrals
4.1 Bonus Deferral.
A Participant may elect to defer payment of all or any portion of
Bonus Compensation for a Plan Year. For each amount deferred, the
Participant shall be credited with a corresponding dollar amount to be paid
under this plan as deferred compensation for the Participant.
4.2 Prior Irrevocable Election.
The election to defer Bonus Compensation shall be made by the
Participant on a form provided for that purpose prior to the beginning of
each Plan Year and shall become irrevocable for each Plan Year as of the
beginning of the Plan Year. The deferral shall be applicable to Bonus
Compensation earned in the Plan Year to which the deferral applies and
payable in the following Plan Year. A new Participant may make an initial
irrevocable election to defer Bonus Compensation during the first 30 days
of eligibility to participate and such election shall apply only to Bonus
Compensation earned following the date of the election. If a new
Participant does not make an election during this 30 day period, the
Participant may not make an election for the initial year of participation.
The Participant shall have no claim or right to payment of the amounts
deferred and shall be limited solely to the rights and benefits conferred
under the terms of this plan. In no event shall an election to defer Bonus
Compensation become effective sooner than the date of the written,
irrevocable election or remain effective beyond the end of the Plan Year to
which it applies.
4.3 Bonus Compensation.
"Bonus Compensation" means the amount of the discretionary or
incentive bonus income granted to a Participant for any Plan Year by the
Board of Directors of the Employer.
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ARTICLE 5
Accounting; Earnings Credits
5.1 Accounting Records.
The Administrator shall maintain separate accounting records for each
Participant. An accounting record shall be maintained for and credited
with the Participant's bonus deferrals plus the earnings credits on the
bonus deferrals described below.
5.2 Timing of Deferrals.
Bonus deferrals shall be credited to the Participant's account as of
the beginning of the Valuation Period in which the Bonus Compensation would
have been payable to the Participant if the Participant had not made a
deferral election.
5.3 Earnings Credits and Debits.
The amount credited to a Participant's account (including prior
earnings credits) as of the beginning of each Valuation Period also shall
be credited with an earnings credit or debit for such Valuation Period.
The amount of the earnings credit shall be an adjustment on the Valuation
Date equal to the increase or decrease which would have occurred if the
value of the account as of the beginning of the Valuation Period reduced by
the amount of any distribution during the Valuation Period had been
invested in the fund at the beginning of the Valuation Period and withdrawn
on the Valuation Date. For this purpose fund means the fund (or funds)
chosen by the Participant to be the investment reference pursuant to
Section 5.4.
Earnings credits shall continue to accrue after a Participant's
employment has terminated and until all amounts due hereunder have been
paid in full. Earnings credits shall not apply to amounts paid during a
Valuation Period.
5.4 Funds.
Effective January 1, 1991, earnings credits shall be measured and
determined under the following rules:
(a) Choices. Each Participant may direct that the Participant's
accounts be treated as if invested in one or more of the following funds:
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(i) Savings Fund. The "Savings Fund" which consists of
investments similar to those in the savings fund offered in the Old Kent
Thrift Plan.
(ii) Diversified Equity Fund. The "Diversified Equity Fund"
which consists of investment units in a fund similar to the diversified
equity fund offered in the Old Kent Thrift Plan.
(iii) Short Term Bond Fund. The "Short Term Bond Fund" which
consists of investments similar to those in the short term bond fund
offered in the Old Kent Thrift Plan.
(b) Frequency. A Participant may change a direction with respect to
existing account balances and with respect to future deferrals as of the
first day of a Valuation Period. Any change in the investment reference by
the Participant shall be effective not earlier than the first day of the
next Valuation Period following the date on which the change is made.
(c) Written Direction. The direction shall be made by the
Participant on a form provided for that purpose at least 30 days prior to
the first day of the Valuation Period. A direction shall be effective on
the first day of the next Valuation Period only when signed by the
Participant and filed with the Administrator, and the direction shall
continue to be in effect until it is revoked or modified in the same
manner.
(d) No Written Direction. In the absence of written direction by a
Participant, the Savings Fund shall be used as the investment reference for
the Participant's account under this plan.
(e) Additional Terms and Conditions. The Administrator may formulate
additional terms and conditions for direction by the Participant as
necessary or appropriate.
ARTICLE 6
Vesting
The right to be paid an amount equal to the bonus deferrals in the
Participant's account, including earnings credits in the account, shall not
be subject to forfeiture for any reason.
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ARTICLE 7
Payments to Participants
7.1 Event of Distribution.
If the Participant's employment terminates for any reason, all amounts
credited to the Participant shall be distributed at the time and in the
manner specified herein. A transfer of employment to OKFC or any
subsidiary of OKFC is not a termination of employment.
7.2 Form of Payment.
At the time of the initial irrevocable election to defer Bonus
Compensation under this plan, each Participant shall irrevocably elect a
form of payment. The following forms of payment may be elected by a
Participant:
(a) Lump Sum. A single lump-sum payment of the entire amount
promised under this plan, or
(b) Installments. Payment of the entire amount promised under this
plan in not more than 10 annual installments.
If the total amount to be distributed does not exceed $3,500, the
Participant shall be paid a lump-sum payment under (a) above.
If the Participant fails to make an election of a form of payment in
the initial election, the Participant shall be paid a lump-sum payment.
7.3 Amount of Payment.
The Participant shall be paid an amount which is the sum of the bonus
deferrals in the Participant's account plus the earnings credits in the
Participant's account. The amount to be distributed shall be determined as
follows:
(a) Lump Sum. For a lump sum distribution, the total amount to be
distributed shall be determined as of the Valuation Date preceding the date
of payment.
(b) Installments. If payment is in installments, the initial amount
to be distributed shall be the total amount due as of the most recent
Valuation Date preceding the initial payment divided by the number of
installment payments elected. Future installments shall be determined by
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dividing the total amount remaining unpaid as of the most recent Valuation
Date preceding the date of payment by the remaining number of annual
installment payments.
With respect to a lump-sum payment or each installment payment, there
shall be no earnings credit or other adjustment, for the period from the
Valuation Date preceding the date of payment to the date of payment.
7.4 Manner of Payment.
Payments shall be paid wholly in cash directly by the Employer or
indirectly through a grantor trust (owned or maintained by the Employer) to
the Participant or the Participant's Beneficiary. If a trust is
established, the Employer shall not be relieved of its obligation and
liability to pay the benefits of this plan except to the extent payments
are actually made from the trust.
7.5 Time of Payment.
A lump-sum payment or an initial installment payment shall be made on
March 1 following the end of the calendar year in which the Participant's
employment terminates. Later installment payments shall be made on March 1
following the end of each subsequent calendar year until the total amount
to be distributed under this plan is distributed.
7.6 Death.
(a) Payment to Beneficiary. If the Participant dies prior to payment
of all amounts due under this plan, payment of all remaining amounts shall
be made to the Participant's Beneficiary. Payments to a Beneficiary
following a Participant's death shall be in the form elected by the
Participant and shall be made or shall begin on the date specified in
Section 7.5. At the time of the initial irrevocable election to defer
Bonus Compensation under this plan, the Participant may designate a form of
payment following the Participant's death which is different from the form
of payment during the Participant's lifetime.
(b) Payment to Estate. If payment is to be made to the estate of a
Participant, payment shall be made in a lump sum 90 days after the date of
the Participant's death.
(c) Generation-Skipping Transfer Tax. Notwithstanding any other
provision in this plan or any related trust agreement, OKFC may withhold or
direct the trustee to withhold any benefits payable to a Beneficiary as a
result of the death of a Participant or any other Beneficiary until it can
-9-
be determined whether a generation-skipping transfer tax, as defined in
Chapter 13 of the Code, or any substitute provision therefor, is payable by
OKFC or the trustee and the amount of generation-skipping transfer tax,
including interest, that is due. If such tax is payable, the benefits
otherwise payable hereunder shall be reduced by an amount equal to the
generation-skipping transfer tax and interest. Any benefits withheld shall
be payable as soon as there is a final determination of the applicable
generation-skipping transfer tax and interest. No interest shall be
payable to any Beneficiary for the period from the date of death to the
time when the amount of benefits payable to a Beneficiary can be fully
determined pursuant to this paragraph.
ARTICLE 8
General Provisions
8.1 Amendment; Termination.
Old Kent Financial Corporation reserves the right to amend this plan
prospectively or retroactively, or to terminate this plan, provided that an
amendment or termination may not reduce or revoke the accrued amounts
promised to be paid to Participants as of the later of the date of adoption
of the amendment or the effective date of the amendment or termination.
Upon termination of this plan, the accounts of affected Participants
shall be administered and distributed in accordance with the provisions of
this plan.
8.2 Employment Relationship.
Nothing in this plan shall be construed as creating a contract of
employment between the Employer and any Participant or otherwise conferring
upon any Participant or other person a legal right to continuation of
employment or any rights other than those specified herein. This plan
shall not limit or affect the right of the Employer to discharge or retire
a Participant.
8.3 Rights Not Assignable.
Except for designation of a Beneficiary, amounts promised hereunder
shall not be subject to assignment, conveyance, transfer, anticipation,
pledge, alienation, sale, encumbrance, or charge, whether voluntary or
involuntary, by the Participant or any Beneficiary of the Participant, even
if directed under a qualified domestic relations order or other divorce
-10-
order. An interest in an amount promised shall not provide collateral or
security for a debt of a Participant or Beneficiary or be subject to
garnishment, execution, assignment, levy, or to another form of judicial or
administrative process or to the claim of a creditor of a Participant or
Beneficiary, through legal process or otherwise. Any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or
to otherwise dispose of benefits payable, before actual receipt of the
benefits, or a right to receive benefits, shall be void and shall not be
recognized.
8.4 Unsecured Creditor Status.
A Participant shall be an unsecured general creditor of the Employer
as to the payment of any benefit under this plan. The right of any
Participant or Beneficiary to be paid the amount promised in this plan
shall be no greater than the right of any other general, unsecured creditor
of the Employer.
8.5 No Trust or Fiduciary Relationship.
Nothing contained in this plan shall be deemed to create a trust or
fiduciary relationship of any kind for the benefit of any Participant or
Beneficiary.
8.6 Construction.
The singular includes the plural, and the plural includes the
singular, unless the context clearly indicates the contrary. Capitalized
terms (except those at the beginning of a sentence or part of a heading)
have the meaning specified in this plan. If a capitalized term is not
defined in this plan, the term shall have the general, accepted meaning of
the term.
8.7 Unfunded Plan.
This shall be an unfunded plan within the meaning of ERISA. Benefits
provided herein constitute only an unsecured contractual promise to pay in
accordance with the terms of this plan by the Employer.
Rev. 1/14/91
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EXHIBIT 5
OPINION OF COUNSEL
March 29, 1994
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Old Kent Financial Corporation
Deferred Compensation Plan
Dear Ladies and Gentlemen:
As general counsel for Old Kent Financial Corporation, a Michigan
corporation (hereinafter called the "Company"), we have examined and are
familiar with the Company's Deferred Compensation Plan (the "Plan") and
other corporate records and documents and have made such further
examination as we have deemed necessary or advisable in order to enable us
to render this opinion.
Based upon the foregoing, we are of the opinion that the Deferred
Compensation Obligations of the Company under the Plan, when incurred in
the manner described in its Form S-8 Registration Statement, are and will
be legally issued, fully paid, non-assessable, binding obligations of the
Company. It is further our opinion that the provisions of the Plan comply
with all requirements of the Employee Retirement Income Security Act of
1974, as amended, pertaining to such provisions.
We hereby consent to the filing of this opinion and consent as an
exhibit to the Registration Statement on Form S-8 covering the Deferred
Compensation Obligations to be issued pursuant to the Deferred Compensation
Plan.
WARNER, NORCROSS & JUDD
By /s/ Gordon R. Lewis
A Partner
EXHIBIT 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 18, 1994, included in Old Kent Financial Corporation's Form 10-K for the
year ended December 31, 1993, and to all references to our firm included in this
Registration Statement.
/s/ Arthur Anderson & Company
ARTHUR ANDERSON & COMPANY
Chicago, Illinois
March 29, 1994
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ John M. Bissell
John M. Bissell
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ John D. Boyles
John D. Boyles
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ John C. Canepa
John C. Canepa
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 24, 1994 /s/ Earl D. Holton
Earl D. Holton
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ Michael J. Jandernoa
Michael J. Jandernoa
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ John P. Keller
John P. Keller
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 25, 1994 /s/ Jerry K. Myers
Jerry K. Myers
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ William U. Parfet
William U. Parfet
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ Robert L. Sadler
Robert L. Sadler
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ Peter F. Secchia
Peter F. Secchia
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ B. P. Sherwood, III
B. P. Sherwood, III
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ Martha L. Thornton
Martha L. Thornton
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 17, 1994 /s/ David J. Wagner
David J. Wagner
Deferred Compensation Plan
EXHIBIT 24
POWER OF ATTORNEY
The undersigned appoints JOHN C. CANEPA, MARTIN J. ALLEN, JR.,
and RICHARD W. WROTEN or CHARLES W. JENNINGS, JR., and any of them
severally, the undersigned's attorneys or attorney to execute in the
undersigned's name and on behalf of the undersigned, in the undersigned's
capacity as a director or officer, or both, as the case may be, of Old Kent
Financial Corporation, a Form S-8 Registration Statement of Old Kent
Financial Corporation for the Old Kent Deferred Compensation Plan, all pre-
effective and post-effective amendments to this registration statement, and
all instruments necessary or incidental in connection with it, and to file
the registration statement with the Securities and Exchange Commission.
Each of the attorneys shall have the power and authority to do and perform
in the name and on behalf of the undersigned, in all capacities, every act
required or necessary to be done as fully and to all intents and purposes
as the undersigned might or could do in person, and the undersigned hereby
ratifies and approves the acts of the attorneys and each of them.
Date Signature
January 4, 1994 /s/ Richard W. Wroten
Richard W. Wroten
Officer