EXHIBIT 10.9
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OLD KENT DEFERRED COMPENSATION PLAN
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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
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Administrator 2.2
Agent for Service of Process 2.3
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
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form approved by the Administrator. The Participant's Will is not
effective for this purpose.
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.
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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.
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
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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
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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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OLD KENT FINANCIAL CORPORATION
DEFERRED COMPENSATION TRUST
TRUST AGREEMENT
Between
OLD KENT FINANCIAL CORPORATION
And
OLD KENT BANK AND TRUST COMPANY
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OLD KENT FINANCIAL CORPORATION
DEFERRED COMPENSATION TRUST
TABLE OF CONTENTS
PAGE
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE I - Effective Date; Duration . . . . . . . . . . . . . . . . . . .2
1.1 Effective Date and Trust Year. . . . . . . . . . . . . . . . . .2
1.2 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.3 Irrevocability . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE II - Trust Fund and Funding Policy . . . . . . . . . . . . . . . .3
2.1 Contributions. . . . . . . . . . . . . . . . . . . . . . . . . .3
2.2 Investments. . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.3 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.4 Substitution of Other Property . . . . . . . . . . . . . . . . .4
2.5 Administrative Powers of Trustee . . . . . . . . . . . . . . . .5
ARTICLE III - Administration . . . . . . . . . . . . . . . . . . . . . . .7
3.1 Company Representatives. . . . . . . . . . . . . . . . . . . . .7
3.2 Payment of Benefits. . . . . . . . . . . . . . . . . . . . . . .8
3.3 Disputed Claims. . . . . . . . . . . . . . . . . . . . . . . . .8
3.4 Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.5 Accountings. . . . . . . . . . . . . . . . . . . . . . . . . . .8
3.6 Expenses and Fees. . . . . . . . . . . . . . . . . . . . . . . .9
ARTICLE IV - Liability . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.1 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
4.2 Bonding. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
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PAGE
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ARTICLE V - Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.1 Determination of Insolvency. . . . . . . . . . . . . . . . . . 10
5.2 Insolvency Administration. . . . . . . . . . . . . . . . . . . 10
5.3 Termination of Insolvency Administration . . . . . . . . . . . 11
5.4 Creditors' Claims During Solvency. . . . . . . . . . . . . . . 11
ARTICLE VI - Successor Trustees. . . . . . . . . . . . . . . . . . . . . 12
6.1 Resignation and Removal. . . . . . . . . . . . . . . . . . . . 12
6.2 Appointment of Successor . . . . . . . . . . . . . . . . . . . 12
6.3 Accountings; Continuity. . . . . . . . . . . . . . . . . . . . 12
ARTICLE VII - General Provisions . . . . . . . . . . . . . . . . . . . . 13
7.1 Interests Not Assignable . . . . . . . . . . . . . . . . . . . 13
7.2 Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.3 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . 13
7.4 Agreement Binding on All Parties . . . . . . . . . . . . . . . 14
7.5 Notices and Directions . . . . . . . . . . . . . . . . . . . . 14
7.6 No Implied Duties. . . . . . . . . . . . . . . . . . . . . . . 14
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TRUST AGREEMENT FOR
OLD KENT FINANCIAL CORPORATION
DEFERRED COMPENSATION TRUST
This Trust Agreement is made this _________ day of _________
___________, 1991, between OLD KENT FINANCIAL CORPORATION, a Michigan
corporation ("OKFC"), and OLD KENT BANK AND TRUST COMPANY (the "Trustee").
OKFC hereby establishes the trust to hold all money and other
property, together with the income thereon, paid or transferred to the
trust under this Trust Agreement. The Trustee accepts the trust and agrees
to hold in trust all money and other property transferred to it hereunder
for the uses and purposes set forth herein, and the Trustee agrees to
discharge and perform fully and faithfully all of the duties and
obligations imposed upon it under this Trust Agreement.
INTRODUCTION
OKFC has adopted the Old Kent Deferred Compensation Plan (the
"Plan") for the benefit of selected executive officers that comprise
management and highly compensated employees.
The purpose of this trust is to give Plan participants greater
security by placing assets in trust to pay benefits under the Plan, unless
OKFC or a subsidiary of OKFC that employs one or more participants in the
Plan becomes insolvent, in which case the assets will be used to pay
creditors of the insolvent corporation. OKFC shall be liable to
participants to make all payments required under the Plan to the extent
that such payments are not made from this trust. Distributions made from
this trust to participants or their beneficiaries shall, to the extent of
such distributions, satisfy OKFC's obligations to pay benefits under the
Plan.
OKFC and the Trustee agree that the trust has been established to
pay obligations of OKFC pursuant to the Plan and, upon insolvency, is
subject to the rights of general creditors of OKFC. The trust is intended
to be a grantor trust under the provisions of Sections 671 through 677 of
the Internal Revenue Code of 1986 as amended (the "Code"). OKFC agrees to
report all items of income and deduction of the trust on its income tax
returns. OKFC shall have no right to any distributions from the trust or
any claim against the trust for funds necessary to pay any income taxes
that OKFC is required to pay. No contribution to or income of the trust is
intended to be taxable to Plan participants until benefits are distributed
to them.
The Plan is intended to be "unfunded" as described in Parts 2
through 4 of Subtitle B of Title 1 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") and maintained primarily for the
purpose of providing deferred compensation for a select group of management
and highly compensated employees.
ARTICLE I
EFFECTIVE DATE; DURATION
1.1 EFFECTIVE DATE AND TRUST YEAR.
This trust shall become effective when the Trust Agreement has
been executed by OKFC and the Trustee, and OKFC has made a contribution to
the trust. The trust year shall coincide with OKFC's fiscal year. OKFC
shall report any change in its fiscal year to the Trustee.
1.2 DURATION.
(a) This trust shall continue in effect until all assets of the trust
fund are exhausted through distribution of benefits to participants,
payment to general creditors in the event of insolvency, payment of fees
and expenses of the Trustee, and return of remaining funds to OKFC pursuant
to Section 1.3.
(b) The Trustee may make payments before they would otherwise be due
if, based on a change in the federal tax or revenue laws, a published
ruling, or similar announcement issued by the Internal Revenue Service, a
regulation issued by the Secretary of the Treasury, a decision by a court
of competent jurisdiction involving a participant or a beneficiary, or a
closing agreement made under Section 7121 of the Code that is approved by
the Internal Revenue Service and involves a participant, it is determined
that a participant has or will recognize income for federal income tax
purposes with respect to amounts that are or will be payable under the Plan
before they are to be paid.
1.3 IRREVOCABILITY.
This trust shall become irrevocable upon the issuance by the
Internal Revenue Service of a private letter ruling establishing that it is
unfunded for purposes of the Code. If such a ruling is denied, OKFC may
revoke the trust and take possession of all assets held by the Trustee for
the trust. This trust also shall become irrevocable if such a ruling is
not requested by OKFC within 90 days after the date of establishing this
trust.
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Except as provided in Section 1.2, the trust shall be irrevocable
with respect to amounts contributed to it, including income attributable to
such contributions, until all benefit rights under the Plan for
participants who are covered by this trust are satisfied. The Trustee
shall then return to OKFC any assets remaining in the trust.
ARTICLE II
TRUST FUND AND FUNDING POLICY
2.1 CONTRIBUTIONS.
(a) OKFC may contribute to the trust such amounts as shall be
reasonably necessary to provide for the payment of all account balances
accrued under the Plan to participants covered by this trust. The time of
payment of contributions shall be decided by OKFC. Contributions may be in
cash or in kind.
(b) The Trustee shall accept the contributions made by OKFC and shall
hold them as a trust fund for the payment of benefits under the Plan. The
Trustee shall not be responsible for the adequacy of the trust fund to pay
all account balances accrued under the Plan.
2.2 INVESTMENTS.
The Trustee shall invest and reinvest the assets of the trust as
the Trustee, in its sole discretion, may deem appropriate, including,
without limitation, improved and unimproved real property (whether or not
income producing); common and preferred stocks; shares or certificates of
participation issued by investment companies; investment trusts and mutual
funds; common or pooled investment funds; bonds; debentures; mortgages;
deeds of trust; insurance and annuity contracts; notes secured by real or
personal property; leases; ground leases; limited partnership interests;
real or personal property interests owned, developed or managed by joint
ventures or limited partnerships; obligations of governmental bodies, both
domestic and foreign; notes, commercial paper, certificates of deposit, and
other securities or evidences of indebtedness, secured or unsecured,
including variable amount notes, convertible securities of all types and
kinds, interest-bearing savings or deposit accounts with any federally
insured bank (including the Trustee) or any federally insured savings and
loan association; and any other property permitted as trust investments
under applicable law. The Trustee is authorized to invest in any common or
pooled investment fund or mutual fund now or hereafter maintained by the
Trustee and any interest-bearing savings or deposit accounts with the
banking department of the Trustee.
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2.3 ACCOUNTS.
(a) The Trustee shall establish a separate account for each Plan
participant who is covered by this trust, to which it shall credit
contributions for that participant. The account shall be a bookkeeping
account only, shall reflect an undivided interest in assets of the trust
fund and shall not require any segregation of particular assets. OKFC
shall direct the Trustee with respect to the allocation of assets of the
trust fund among the separate accounts. With respect to any new
contributions to the trust by OKFC after separate accounts have been
established, OKFC shall designate each Plan participant for whom such
contributions are made. If the Trustee does not receive a valid direction
with respect to the allocation of assets of the trust fund among separate
accounts or does not receive a valid direction with respect to the
participants for whom new contributions are made within a reasonable time
after such accounts are established or such contributions are received, the
unallocated assets shall be allocated and new contributions shall be
credited in proportion to the account balances of the participants entitled
thereto. The Trustee shall have no duty to inquire whether any of the
foregoing allocations of assets of the trust fund or contributions to the
trust are made in compliance with the terms of the Plan. After separate
accounts are established, assets allocated to an account for one Plan
participant may not be utilized to provide benefits for any other
participants until all benefits for such participant have been paid in
full.
(b) The Trustee shall allocate investment earnings and losses of the
trust fund among the accounts in proportion to their balances, except that
changes in the value of insurance and annuity contracts shall be allocated
to the account or accounts for which they are held. Payments to general
creditors during Insolvency Administration under Section 5.2 shall be
charged against the accounts in proportion to their account balances,
except that payment of benefits to a Plan participant as a general creditor
shall be charged against the account for that participant.
(c) OKFC and the Trustee may agree that the accounts under this
Section 2.3 shall be maintained by the Plan Administrator, or such other
person as may be designated by the Plan Administrator, rather than the
Trustee.
2.4 SUBSTITUTION OF OTHER PROPERTY.
(a) In the event that any contributions to the trust are made in kind
as provided in Section 2.1(a), OKFC shall have the power to reacquire part
or all of the trust fund consisting of such contributions at any time, by
substituting other readily marketable property of equivalent value, net of
any costs of disposition. Such power is exercisable in a non-fiduciary
capacity and may be exercised without the approval or consent of
participants or any other person.
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(b) The value of all assets in the trust fund shall be fair market
value. Values shall be determined by the Trustee and may be based on the
determination of Experts, as described in Section 2.5(b).
2.5 ADMINISTRATIVE POWERS OF TRUSTEE.
(a) Subject in all respects to applicable provisions of this Trust
Agreement and the Plan, including limitations on investment of the trust
fund, the Trustee shall have the rights, powers and privileges of an
absolute owner when dealing with property of the trust, including, without
limitation, the powers listed below:
(1) To sell, convey, transfer, exchange, partition, lease, and
otherwise dispose of any of the assets of the trust at any time held by the
Trustee under this Trust Agreement;
(2) To exercise any option, conversion privilege or subscription
right given the Trustee as the owner of any security held in the trust; to
vote any corporate stock either in person or by proxy, with or without
power of substitution; to consent to or oppose any reorganization,
consolidation, merger, readjustment of financial structure, sale, lease or
other disposition of the assets of any corporation or other organization,
the securities of which may be an asset of the trust; and to take any
action in connection therewith and receive and retain any securities
resulting therefrom;
(3) To deposit any security with any protective or
reorganization committee, and to delegate to such committee such power and
authority with respect thereto as the Trustee may deem proper, and to agree
to pay out of the trust such portion of the expenses and compensation of
such committee as the Trustee, in its discretion, shall deem appropriate;
(4) To cause any property of the trust to be issued, held or
registered in the name of the Trustee as trustee, or in the name of one or
more of its nominees, or one or more nominees of any system for the central
handling of securities, or in such form that title will pass by delivery,
provided that the records of the Trustee shall in all events indicate the
true ownership of such property;
(5) To renew or extend the time of payment of any obligation due
or to become due;
(6) To commence or defend lawsuits or legal or administrative
proceedings; to compromise, arbitrate or settle claims, debts or damages in
favor of or against the trust; to deliver or accept, in either total or
partial satisfaction of any indebtedness or other obligation, any property;
to continue to hold for such period of time as the Trustee may deem
appropriate any property so received; and to pay all costs and reasonable
attorney fees in connection therewith out of the assets of the trust;
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(7) To grant options to purchase or to acquire options to
purchase any real property;
(8) To foreclose any obligation by judicial proceeding or
otherwise;
(9) To manage any real property in the trust in the same manner
as if the Trustee were the absolute owner thereof, including the power to
lease the same for such term or terms within or beyond the existence of the
trust and upon such conditions, including (but not by way of limitation)
agreements for the purchase or disposal of buildings thereon and options to
the tenant to renew such lease from time to time, or to purchase such
property, as the Trustee may deem proper;
(10) To borrow money from any person in such amounts, upon such
terms and for such purposes as the Trustee, in its discretion, may deem
appropriate; and in connection therewith, to execute promissory notes,
mortgages or other obligations and to pledge or mortgage any trust assets
as security; and to lend money on a secured or unsecured basis to any
person other than a party in interest;
(11) To appoint one or more persons or entities as agents or
custodians to act as ancillary trustees or sub-trustees for the purpose of
investing in and holding title to real or personal property or any interest
therein located outside the State of Michigan; provided that any such
ancillary trustee or sub-trustee shall act with such power, authority,
discretion, duties, and functions of the Trustee as shall be specified in
the instrument establishing such ancillary or sub-trust, including, without
limitation, the power to receive, hold and manage property, real or
personal, or undivided interests therein; and the Trustee may pay the
reasonable expenses and compensation of such ancillary trustees or sub-
trustees out of the trust;
(12) To deposit any securities held in the trust with a
securities depository;
(13) To retain in money market funds or other daily interest,
daily availability funds and investment cash so much of the trust assets as
the Trustee deems advisable;
(14) To determine how all receipts and disbursements shall be
credited, charged or apportioned as between income and principal, and the
decision of the Trustee shall be final and not subject to question by any
participant or beneficiary of the trust; and
(15) Generally to do all acts, whether or not expressly
authorized, which the Trustee may deem necessary or desirable for the
orderly administration or protection of the trust fund.
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Notwithstanding the foregoing or any other language in this Trust
Agreement, the Trustee shall not have the power to start, enter into, or
otherwise engage in any business enterprise, or continue to operate any
business interest that becomes part of the trust estate, if such activity
constitutes "carrying on business" as referred to in Section 301.7701-2 of
the Procedure and Administration Regulations under the Internal Revenue
Code of 1986, as amended.
(b) The Trustee may engage one or more independent attorneys,
accountants, actuaries, appraisers or other experts (an "Expert") for any
purpose, including the determination of disputed claims pursuant to Section
3.3. The determination of an Expert shall be final and binding on OKFC,
the Trustee, and all of the participants unless within 30 days after
receiving a determination deemed by any participant to be adverse, the
participant initiates suit in a court of competent jurisdiction seeking
appropriate relief. The Trustee shall have no duty to oversee or
independently evaluate the determination of the Expert. The Trustee shall
be authorized to pay the fees and expenses of any Expert out of the assets
of the trust fund.
(c) OKFC shall from time to time pay taxes (including interest and
applicable penalties) of any and all kinds whatsoever that at any time are
lawfully levied or assessed upon or become payable in respect of the trust
fund, the income or any property forming a part thereof, or any security
transaction pertaining thereto. To the extent that any taxes levied or
assessed upon the trust fund are not paid by OKFC or contested by OKFC
pursuant to the last sentence of this paragraph, the Trustee shall pay such
taxes out of the trust fund, and OKFC may, in its discretion, deposit into
the trust fund an amount equal to the amount paid from the trust fund to
satisfy such tax liability. If requested by OKFC, the Trustee shall, at
OKFC's expense, contest the validity of such taxes in any manner deemed
appropriate by OKFC or its counsel, but only if it has received an
indemnity bond or other security satisfactory to it to pay any expenses of
such contest. Alternatively, OKFC may itself contest the validity of any
such taxes.
ARTICLE III
ADMINISTRATION
3.1 COMPANY REPRESENTATIVES.
(a) OKFC is the Plan Administrator for the Plan and has general
responsibility to interpret the Plan and determine the rights of
participants and beneficiaries.
(b) The Trustee shall be given the names and specimen signatures of
OKFC representatives authorized to take action with regard to the
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administration of the Plan and this trust. The Trustee shall accept and
rely upon the names and signatures until notified of any change.
Instructions to the Trustee shall be signed for OKFC by any such
representative(s) as OKFC may designate.
3.2 PAYMENT OF BENEFITS.
(a) The Trustee shall pay benefits to participants and beneficiaries
on behalf of OKFC in satisfaction of OKFC's obligations under the Plan or
shall reimburse OKFC for payments made directly by OKFC in satisfaction of
its obligations under the Plan. Benefit payments from an account, or
reimbursements therefor, shall be made until the assets of the account are
exhausted. OKFC's obligation shall not be limited to the trust fund, and a
participant shall have a claim against OKFC for any payment not made by the
Trustee.
(b) The Trustee shall make payments in accordance with written
directions from OKFC. To the extent that the Trustee makes payments to
participants and beneficiaries as directed by OKFC, the Trustee shall make
any required income tax withholding and shall pay amounts withheld to
taxing authorities on OKFC's behalf or determine that such amounts have
been paid by OKFC.
(c) A participant's entitlement to benefits under the Plan shall be
determined by OKFC. Any claim for such benefits shall be considered and
reviewed under the claims procedures established for the Plan.
3.3 DISPUTED CLAIMS.
A claim with respect to eligibility to participate in the Plan,
eligibility for a benefit, the amount of a benefit or any other matter
relating to a particular participant or beneficiary shall be made to the
Plan Administrator in accordance with the terms of the Plan. The
determination by the Plan Administrator with respect to such claims shall
be binding upon the Trustee. The Trustee shall have no obligation to
determine any claim presented to it and may file suit to have such matter
resolved in a court of competent jurisdiction. All of the Trustee's
expenses in the court proceeding, including attorney fees, shall be allowed
as administrative expenses of the trust.
3.4 RECORDS.
The Trustee shall keep complete records on the trust fund open to
inspection by OKFC at all reasonable times. In addition to accountings
required below, the Trustee shall furnish to OKFC any information requested
about the trust fund.
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3.5 ACCOUNTINGS.
(a) The Trustee shall furnish OKFC with a complete accounting of the
trust fund annually as soon as reasonably practicable after the end of the
trust year showing assets and liabilities and income and expense for the
year. The form and content of the accounting shall be sufficient for OKFC
to include in computing its taxable income the income, deductions and
credits against taxes that are attributable to the trust fund.
(b) OKFC may object to an accounting within 180 days after it is
furnished and require that it be settled by audit by a qualified,
independent certified public accountant. The auditor shall be chosen by
the Trustee from a list of at least three such accountants furnished by
OKFC at the time the audit is requested. Either OKFC or the Trustee may
require that the account be settled by a court of competent jurisdiction,
in lieu of or in conjunction with the audit. All expenses of any audit or
court proceedings, including reasonable attorney fees, shall be allowed as
administrative expenses of the trust.
(c) If OKFC does not object to an accounting within the time
provided, the account shall be settled for the period covered by it. When
an account is settled, it shall be final and binding on all parties,
including all participants and persons claiming through them.
3.6 EXPENSES AND FEES.
(a) The Trustee shall be reimbursed for all expenses and shall be
paid a reasonable fee fixed by agreement with OKFC from time to time. No
increase in the fee shall be effective before 60 days after the Trustee
gives notice to OKFC of the increase. The Trustee shall notify OKFC
periodically of expenses and fees.
(b) OKFC shall pay administrative fees and expenses. If not so
paid, the fees and expenses shall be paid from the trust fund. OKFC may
reimburse the trust fund for any fees and expenses paid out of it.
ARTICLE IV
LIABILITY
4.1 INDEMNITY.
Subject to such limitations as may be imposed by applicable law,
OKFC shall indemnify and hold harmless the Trustee from any claims, loss,
liability, or expense arising from any action or inaction in administration
of this trust based on direction or information from either OKFC, or any
Expert, absent willful misconduct or bad faith.
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4.2 BONDING.
The Trustee need not give any bond or other security for
performance of its duties under this trust.
ARTICLE V
INSOLVENCY
5.1 DETERMINATION OF INSOLVENCY.
(a) For purposes of this trust, an entity is Insolvent if it is
unable to pay its debts as they come due or it is the subject of a pending
proceeding as a debtor under the federal Bankruptcy Code (or any successor
federal statute).
(b) If OKFC or any subsidiary of OKFC that employs one or more
participants in the Plan (individually a "Participating Employer") becomes
Insolvent, the Chief Executive Officer and the Board of Directors of the
Participating Employer shall notify the Trustee that the corporation is
Insolvent. 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 shall
commence Insolvency Administration under Section 5.2 and shall
independently determine whether such insolvency exists. The expenses of
such determination shall be allowed as administrative expenses of the
trust.
(c) Payments from the trust fund to participants under the Plan shall
cease and the Trustee shall commence Insolvency Administration under
Section 5.2 upon the earlier of:
(1) Receipt of a notice or allegation of insolvency under
Section 5.1(b); or
(2) A determination by the Trustee or a court of competent
jurisdiction that the Participating Employer is Insolvent.
(d) The Trustee shall have no obligation to investigate the financial
condition of the Participating Employer prior to receiving a notice or
allegation of insolvency under Section 5.1(b).
5.2 INSOLVENCY ADMINISTRATION.
(a) During Insolvency Administration, the Trustee shall hold the
trust fund for the benefit of the general creditors of the Participating
Employer and make payments only in accordance with Section 5.2(b). The Plan
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participants and beneficiaries shall have no greater rights than general
creditors of the Participating Employer. The Trustee shall continue the
investment of the trust fund in accordance with Section 2.2.
(b) The Trustee shall make payments out of the trust fund in one or
more of the following ways:
(1) To general creditors in accordance with instructions from a
court, or a person appointed by a court, having jurisdiction over the
Participating Employer's condition of insolvency;
(2) To Plan participants and beneficiaries in accordance with
such instructions; and
(3) In payment of its own fees or expenses.
5.3 TERMINATION OF INSOLVENCY ADMINISTRATION.
(a) Insolvency Administration shall terminate when the Trustee
determines that the Participating Employer:
(1) Is not Insolvent;
(2) Has ceased to be Insolvent; or
(3) Has been determined by a court of competent jurisdiction not
to be Insolvent or to have ceased to be Insolvent.
(b) Upon termination of Insolvency Administration under Section
5.3(a), the trust fund shall continue to be held for the benefit of the
participants in the Plan. Benefit payments due during the period of
Insolvency Administration shall be made as soon as practicable, together
with interest from the due dates at a rate equal to the interest rate fixed
by the Pension Benefit Guaranty Corporation for valuing immediate annuities
in the preceding month.
5.4 CREDITORS' CLAIMS DURING SOLVENCY.
(a) During periods of Solvency the Trustee shall hold the trust fund
exclusively to pay Plan benefits and fees and expenses of the trust until
all Plan benefits have been paid. Creditors of the Participating Employer
shall not be paid from the trust fund during Solvency, and the trust fund
may not be seized by or subjected to the claims of such creditors in any
way.
(b) A period of Solvency is any period not covered by Section 5.2.
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ARTICLE VI
SUCCESSOR TRUSTEES
6.1 RESIGNATION AND REMOVAL.
(a) The Trustee may resign at any time by notice to OKFC, which shall
be effective in 60 days unless OKFC and the Trustee agree otherwise.
(b) The Trustee may be removed by OKFC on 60 days' notice or shorter
notice accepted by the Trustee.
(c) When resignation or removal is effective, the Trustee shall begin
transfer of assets to the successor Trustee immediately. The transfer
shall be completed within 60 days, unless OKFC extends the time limit.
(d) If the Trustee resigns or is removed, OKFC shall appoint a
successor by the effective date of resignation or removal under Sections
6.1(a) or (b). If no such appointment has been made, the Trustee may apply
to a court of competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the
proceeding shall be allowed as administrative expenses of the trust.
6.2 APPOINTMENT OF SUCCESSOR.
(a) OKFC may appoint any national or state bank or trust company as
a successor to replace the Trustee upon resignation or removal. The
appointment shall be effective when accepted in writing by the new Trustee,
which shall have all of the rights and powers of the former Trustee,
including ownership rights in the trust assets. The former Trustee shall
execute any instruments necessary or reasonably requested by OKFC or the
successor Trustee to evidence the transfer.
(b) The successor Trustee need not examine the records and acts of
any prior Trustee and may retain or dispose of existing trust assets,
subject to Article II. The successor Trustee shall not be responsible for,
and OKFC shall indemnify and hold harmless the successor Trustee from any
claim or liability because of, any action or inaction of any prior Trustee
or any other past event, any existing condition or any existing assets.
6.3 ACCOUNTINGS; CONTINUITY.
(a) A Trustee who resigns or is removed shall submit a final
accounting to OKFC as soon as practicable. The accounting shall be
received and settled as provided in Section 3.5 for regular accountings.
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(b) No resignation or removal of the Trustee or change in identity of
the Trustee for any reason shall cause a termination of the Plan or this
trust.
ARTICLE VII
GENERAL PROVISIONS
7.1 INTERESTS NOT ASSIGNABLE.
(a) The interest of a participant in the trust fund may not be
assigned, seized by legal process, transferred, or subjected to the claims
of the participant's creditors in any way. An attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge, or to otherwise
dispose of promised benefits or the right to receive promised benefits,
before actual receipt of the benefits, shall be void and shall not be
recognized.
(b) Neither OKFC nor any other Participating Employer may create a
security interest in the trust fund in favor of any of its creditors. The
Trustee shall not make payments from the trust fund of any amounts to
creditors of OKFC who are not Plan participants, except as provided in
Section 5.2.
(c) The participants shall have no interest in the assets of the
trust fund beyond the right to receive payment of Plan benefits from such
assets outside periods of Insolvency Administration under Section 5.2.
During Insolvency Administration the participants' rights to trust assets
shall not be superior to those of any other general creditors of the
Participating Employer.
7.2 AMENDMENT.
Except as provided in Sections 1.2 and 1.3, no amendment shall
alter or reduce the rights of Plan participants in the Plan, increase the
rights of other general creditors in the assets of the trust fund, or cause
this Trust Agreement or the trust to be revoked and terminated or to become
revocable. The duties and powers of the Trustee shall not be increased
without the Trustee's written consent.
7.3 APPLICABLE LAW.
This Trust shall be governed, construed and administered
according to the laws of the State of Michigan, except as preempted by
ERISA.
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7.4 AGREEMENT BINDING ON ALL PARTIES.
This Trust Agreement shall be binding upon the heirs, personal
representatives, successors and assigns of any and all present and future
parties and Plan participants.
7.5 NOTICES AND DIRECTIONS.
Any notice or direction under this trust shall be in writing and
shall be effective when actually delivered, or if mailed, when deposited
postpaid as first-class mail. Mail to a party shall be directed to the
address stated below or to such other address as either party may specify
by notice to the other party. Until notice is given to the contrary,
notices to OKFC and the Trustee shall be addressed as follows:
If to OKFC:
Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Attention: Director of Human Resources
If to the Trustee:
Old Kent Bank and Trust Company
200 Monroe, N.W.
Suite 430
Grand Rapids, Michigan 49503
Attention: Corporate Trust Services
7.6 NO IMPLIED DUTIES.
The duties of the Trustee shall be those stated in this trust,
and no other duties shall be implied.
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IN WITNESS WHEREOF, OKFC and the Trustee have caused this Trust
Agreement to be executed by their respective duly authorized officers on
the date first written above.
OLD KENT FINANCIAL CORPORATION
By: ____________________________________
Its _______________________________
"OKFC"
OLD KENT BANK AND TRUST COMPANY
By: ____________________________________
Its _______________________________
"Trustee"
Rev. 1/17/91
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