EXHIBIT 3(b) Restated April 19, 1993
as amended through
April 17, 1995
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 and Trust
Company 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
to each shareholder entitled to vote at the meeting not less than ten (10)
nor more than sixty (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 both (a) a waiver of notice or defective notice
except when the shareholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to holding the meeting or
transacting any business because the meeting has not been lawfully called
or convened, and (b) a waiver of objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described
in the meeting notice, except when 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 and kept at the time and place of the meeting and may be
inspected during the whole 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 by law, 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 by law. If there is no quorum, the officer of the
Corporation presiding as 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. However, if the adjournment is for more
than thirty (30) days, or if after the adjournment the board fixes a new
record date for the adjourned meeting, notice of the time, place and
purposes of such meeting shall be given to each shareholder of record on
the new record date. 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.
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
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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 express provision of 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. Each proxy to vote shall be in writing and signed by the
shareholder or his or her duly authorized representative, and no proxy
shall be voted after three years from its date, unless the proxy provides
for a longer period.
SECTION 9. CONDUCT OF MEETINGS. Meetings of shareholders generally
shall follow accepted rules of parliamentary procedure, subject to the
following:
(a) 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. If, in his or her absolute
discretion, the chairman deems it advisable to dispense with the
rules of parliamentary procedure as to any meeting of
shareholders or part thereof, he or she shall so state and shall
clearly state the rules under which the meeting or appropriate
part thereof shall be conducted.
(b) If disorder should arise which, in the absolute
discretion of the chairman, prevents 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 is immediately adjourned without the
necessity of any vote or further action of the shareholders.
(c) The chairman 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.
(d) The chairman 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
proposed by a shareholder of record on the record date or a
validly appointed proxy of such a shareholder, and seconded by
such a shareholder or proxy other than the individual who
proposed the resolution or motion.
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(e) Except as the chairman shall direct, no matter may be
presented to the meeting which has not been submitted in writing
to the Secretary for inclusion in the agenda at least 10 days
before the date of the meeting.
(f) When all shareholders present at a meeting in person or
by proxy have been offered an opportunity to vote on any matter
properly before a meeting, the chairman may at his or her
discretion declare the polls to be closed, and no further votes
may be cast or changed after such declaration. If no such
declaration is made by the chairman, the polls shall remain open
and shareholders may cast additional votes or change votes until
the inspectors of election have delivered their final report to
the chairman.
(g) When the chairman 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 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 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 10. INSPECTORS OF ELECTION. The board of directors or, if
they shall not have so acted, the chairman may appoint, at or prior to any
meeting of shareholders, one or more persons (who may be directors and/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.
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SECTION 11. VOTING. 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.
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 not be more than sixty (60) days nor less
than ten (10) days before the date of any such meeting, nor more than sixty
(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 entitled to express consent to corporate
action in writing, without a meeting, when no prior action by the board of
directors is necessary, shall be the day on which the first written consent
is expressed; and (c) 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 relating thereto 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 fixes a new record date for
the adjourned meeting.
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ARTICLE IV
DIRECTORS
SECTION 1. NUMBER AND QUALIFICATION OF DIRECTORS. Each director
shall be at least twenty-one (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.
SECTION 2. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized 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 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 or 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 therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
SECTION 5. RESIGNATION AND REMOVAL. Any director may resign at any
time and such resignation shall take effect upon receipt of written notice
thereof 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, and no notice of such 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
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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.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board may be
called by the Chairman of the Board or the Chief Executive Officer on two
(2) days' notice to each director, either personally, by mail, by telegram
or by facsimile 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 (2) 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 thereat 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 or of such committee, as the case may be,
consent thereto in writing and such written consent is filed with the
minutes or proceedings of the board 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, 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
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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
action taken at the meeting. Notice of any meeting of the board 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. 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;
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(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 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 the
power to take and effect such actions as it deems necessary or
advisable in the performance of its duties. The 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. PERSONNEL COMMITTEE.
(a) FUNCTION. The Personnel 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 Personnel Committee shall
have the following duties and responsibilities:
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(i) administering the option plans and benefit plans
of the Corporation which are approved by the board of
directors;
(ii) determining the compensation policy of the
Corporation, reviewing the personnel policies and programs
of the Corporation, and submitting recommendations to the
board of directors;
(iii) determining the compensation of the Chief
Executive Officer, reviewing individual salaries of other
executive officers, and submitting recommendations to the
board of directors; and
(iv) preparing an annual report that may be submitted
to the Corporation's shareholders concerning the
compensation policy of the Corporation and the committee's
compensation decisions during the previous fiscal year.
(b) ELIGIBILITY OF MEMBERS. Directors who fulfill all of
the following conditions shall be eligible to serve on the
Personnel Committee:
(i) members may not be current or former employees of
the Corporation or any of its subsidiaries;
(ii) members must be "disinterested persons" as such
term may be defined for purposes of Section 16 of the
Securities Exchange Act of 1934, as amended; and
(iii) members must not have an Interlocking
Relationship with any executive officer of the Corporation.
An Interlocking Relationship shall include a relationship where 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 that would be required to be
disclosed pursuant to Item 402(j)(3) of Regulation S-K issued by the
Securities and Exchange Commission.
(c) AUTHORIZED ACTIONS. The Personnel Committee shall have
the power to take and effect the following actions:
(i) authorize the issuance of stock pursuant to the
option plans and benefit plans of the Corporation which are
approved by the board of directors;
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(ii) interpret the option plans and benefit plans of
the Corporation which it administers to the extent that such
power does not conflict with the terms of the applicable
plan document; and
(iii) 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.
SECTION 5. COMMITTEE ON DIRECTORS. The Committee on Directors, if
there is one, shall consider candidates for the board of directors, propose
to the board of directors candidates for directors for submission to the
shareholders at the annual meeting, and review the retirement policy for
directors and make recommendations to the board of directors concerning
this policy.
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 by telephone,
telegram, letter or facsimile 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 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
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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.
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. (Amended 4/17/95.)
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
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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.
SECTION 7. PRESIDENT. The President shall, subject to the direction
of the board of directors, see that all orders and resolutions of the board
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 until the board
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, 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 or by the Chief Executive
Officer, unless and until the board 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
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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 in the order of their
seniority or such other priority as may be established by the board or by
the Chief Executive Officer, unless and until the board 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,
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 or directors, taking proper vouchers for such
disbursements, and shall render to the directors, at the regular meetings
of the board 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 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
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officer. To the extent that the enumerated powers or duties do not involve
participation in major policy-making functions of the 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
another foreign or domestic Corporation, partnership, joint venture, trust
or other enterprise, whether for profit or not, shall be indemnified by the
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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. AUTHORIZATION OF INDEMNIFICATION. 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 shall be made (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, or if such a quorum cannot be obtained, by a majority vote
of a committee duly designated by the board consisting solely of two or
more directors not at the time parties or threatened to be made parties to
such action, suit or proceeding; (b) by independent legal counsel (who may
be the regular counsel of the Corporation) in a written opinion, which
counsel shall be selected as provided in (a) above, provided that if a
committee cannot be designated as provided in (a) above, then the board
shall select such independent counsel; (c) 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 (d) 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. In
designating a committee under (a) above, or in the selection of independent
legal counsel in the event a committee cannot be designated pursuant to
(b) 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
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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. 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 in defending a civil or criminal action, suit or proceeding
described in Section 1 or 2 of this Article shall be paid 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) a determination is made that the facts then known to
those making the determination would not preclude indemnification under the
Michigan Business Corporation Act. Persons who are 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 or independent legal counsel reasonably determines that such person
deliberately breached his or her duty to the Corporation or its
shareholders.
SECTION 6. 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, his or her indemnification shall be limited to
reasonable expenses incurred.
SECTION 7. 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 bylaw, 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,
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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
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 8. 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 9. MERGERS. For the purposes of this Article, references to
the "Corporation" include all constituent Corporations 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
such constituent Corporation, or is or was serving at the request of such
constituent 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 if he or she had served the
resulting or surviving Corporation in the same capacity.
SECTION 10. 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.
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ARTICLE IX
SUBSIDIARIES
SECTION 1. SUBSIDIARIES. The board of directors, the Chief Executive
Officer, or any executive officer designated by the board of 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 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.
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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(s) or any holder(s) of a titled position who has
signed, or whose facsimile signature(s) has been used on, any certificate
shall cease to be such officer(s) or holder(s) before such certificate has
been delivered by the Corporation, such certificate may nevertheless be
issued and delivered as though the person(s) who signed such certificate or
whose facsimile signature(s) appears thereon continued to be such
officer(s) or holder(s) 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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OLD KENT FINANCIAL CORPORATION
SECRETARY'S CERTIFICATE
I, MARTIN J. ALLEN, JR., the duly elected, qualified and acting Senior
Vice President and Secretary of Old Kent Financial Corporation (the
"Corporation"), do hereby certify that attached hereto is a true and
correct copy of the Bylaws of the Corporation which were in full force and
effect as of the date written below.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal
of the Corporation on _______________________________, 19_____.
________________________________
Martin J. Allen, Jr.
Senior Vice President and
Secretary
[Corporate Seal]
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