EXHIBIT 4.3
MICHIGAN DEPARTMENT OF COMMERCE -- CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
Name
MICHAEL P. LUNT
Address
900 OLD KENT BUILDING, 111 LYON NW
City State Zip Code
GRAND RAPIDS MI 49503
EFFECTIVE DATE:
Document will be returned to the name and address you enter above.
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CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES C PREFERRED STOCK
OF
OLD KENT FINANCIAL CORPORATION
Pursuant to Section 302 of
Michigan Business Corporation Act
[See attached]
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES C PREFERRED STOCK
OF
OLD KENT FINANCIAL CORPORATION
Pursuant to Section 302 of
Michigan Business Corporation Act
We, David J. Wagner, Chairman of the Board, President and
Chief Executive Officer, and B.P. Sherwood III, Vice Chairman of the
Board and Treasurer, of Old Kent Financial Corporation, a corporation
organized and existing under the Michigan Business Corporation Act, in
accordance with the provisions of Section 302 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Articles of Incorporation, the Board of
Directors on January 20, 1997, adopted the following resolutions
creating a series of 1,000,000 shares of Preferred Stock designated as
Series C Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporporation in accordance with the provisions
of its Restated Articles of Incorporation, a series of Preferred Stock
of the Corporation be and it hereby is created, and that the
designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the
shares of such series, and the qualifications, limitations, or
restrictions thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series C Preferred Stock" and the number of
shares constituting such series shall be 1,000,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the prior and superior rights of the
holders of any shares of any series of preferred stock
ranking prior and superior to the shares of Series C
Preferred Stock, holders of shares of Series C Preferred
Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the
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fifteenth day of March, June, September, and December in
each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of
a share or fraction of a share of Series C Preferred Stock,
in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $34, or (b) subject to the provision
for adjustment hereinafter set forth, one hundred times the
aggregate per share amount of all cash dividends, and one
hundred times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common
Stock, par value $1.00 per share, of the Corporation (the
"Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series C Preferred
Stock. In the event the Corporation shall at any time after
January 20, 1997 (the "Rights Declaration Date"), (i)
declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock,
or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount to which
holders of shares of Series C Preferred Stock were entitled
immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare a dividend or
distribution on the Series C Preferred Stock as provided in
paragraph (a) above immediately after it declares a dividend
or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $34 per share on the
Series C Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series C Preferred Stock from the
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Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series C Preferred Stock, unless the
date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of
Series C Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue
and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series C Preferred Stock in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series C Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be no more than thirty days prior to the date fixed
for the payment thereof.
Section 3. VOTING RIGHTS. Each share of Series C Preferred
Stock shall entitle the holder thereof to one (1) vote on all matters
submitted to a vote of the shareholders of the Corporation. Except as
otherwise provided by law, the holders of shares of Series C Preferred
Stock and the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of shareholders of the
Corporation. Except as set forth herein, holders of Series C
Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Preferred Stock as
provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series C Preferred Stock
outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
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acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Preferred
Stock, except dividends paid ratably on the Series C
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series C Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series C Preferred Stock;
(iv) purchase or otherwise acquire for
consideration any shares of Series C Preferred Stock,
or any shares of stock ranking on a parity with the
Series C Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the corporation unless
the Corporation could, under paragraph (a) of this Section
4, purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series C Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
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whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of preferred stock and may be
reissued as part of a new series of preferred stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred Stock
unless, prior thereto, the holders of shares of Series C
Preferred Stock shall have received an amount equal to
accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment, plus
an amount equal to the greater of (i) $450 per share, or
(ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to one hundred
times the aggregate amount to be distributed per share to
holders of shares of Common Stock (the "Series C Liquidation
Preference"). All such preferential amounts shall be paid
or set aside for payment before the payment or setting aside
for payment of any amount for, or the distribution of any
assets of the Corporation to, the holders of shares of any
class or series of stock ranking junior to Series C
Preferred Stock as to assets of the Corporation.
(b) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series C Liquidation Preference and the liquidation
preferences of all other series of preferred stock that may
be outstanding, if any, then such remaining assets shall be
distributed ratably to the holders of all such shares of
preferred stock (including Series C Preferred Stock) in
proportion to the full preferential amount to which each
such share shall be entitled.
(c) In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares,
then in each such case the aggregate amount to which holders
of shares of Series C Preferred Stock were entitled
immediately prior to such event under clause (ii) of Section
6(a) above shall be adjusted by multiplying such by a
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fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series C Preferred Stock
shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set
forth) equal to one hundred times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series C Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series C Preferred
Stock shall not be redeemable.
Section 9. RANKING. The Series C Preferred Stock shall rank
junior to all other series of the Corporation's preferred stock as to
the payment of dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Articles of Incorporation
of the Corporation shall not be further amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series C Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority or more of
the outstanding shares of Series C Preferred Stock, voting separately
as a class; PROVIDED, HOWEVER, that at any time that there are no
outstanding shares of Series C Preferred Stock and no outstanding
rights, warrants, or options to acquire shares of Series C Preferred
Stock, the Board of Directors may amend the powers, preferences, and
rights of the Series C Preferred Stock or convert such shares of
Series C Preferred Stock into authorized but unissued shares of
preferred stock which may be reissued as part of a new series of
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preferred stock in accordance with the provisions of the Restated
Articles of Incorporation.
Section 11. FRACTIONAL SHARES. Series C Preferred Stock may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series C Preferred
Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury as of the 20th day of January, 1997.
/S/ DAVID J. WAGNER
David J. Wagner
Chairman of the Board,
President and Chief
Executive Officer
/S/ B.P. SHERWOOD, III
B.P. Sherwood, III
Vice Chairman of the Board
and Treasurer
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