EXHIBIT 4.4
THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL
SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE
OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY
AFFILIATE OF THE TRUST WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY
PREDECESSOR) EXCEPT (A) TO THE TRUST, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS
CAPITAL SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE, ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D)
AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND
THE PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO
THEM IN FORM AND SUBSTANCE.
This Capital Security is a Global Certificate within the meaning
of the Declaration hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depository"), or
a nominee of the Depository. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Capital Security (other than a
transfer of this Capital Security as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in limited
circumstances.
2
Unless this Capital Security Certificate is presented by an
authorized representative of the Depository to Old Kent Capital Trust I or
its agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of Cede & Co.
or such other name as registered by an authorized representative of the
Depository (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depository),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.
CERTIFICATE NO. 1 NUMBER OF CAPITAL SECURITIES: 100,000
CUSIP NO. 679829 AB 7 (R144A) $100,000,000 AGGREGATE LIQUIDATION AMOUNT
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
OLD KENT CAPITAL TRUST I
FLOATING RATE SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OLD KENT CAPITAL TRUST I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co. (the "Holder") is the registered owner of $100,000,000 aggregate
liquidation amount of capital securities of the Trust representing
undivided beneficial ownership interests in the assets of the Trust
designated the Floating Rate Subordinated Capital Income Securities
(liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer
as provided in the Declaration (as defined below). The designation,
rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust, dated as of January 31, 1997
(as the same may be amended from time to time (the "Declaration"), Old Kent
Financial Corporation, as Sponsor (the "Company"), Xxxxxx X. Xxxxx, Xxxxxx
X. Xxxxxx and Xxxx X. Xxxx, as Regular Trustees, Bankers Trust Company, as
Property Trustee, and Bankers Trust Company (Delaware), as Delaware
Trustee. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. The Sponsor
will provide a copy of the Declaration, the Guarantee and the Indenture to
a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
3
By acceptance, the Holder agrees to treat, for U.S. federal
income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided indirect beneficial ownership interests
in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:___________________________________
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:___________________________________
Authorized Officer
4
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
three years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such
Capital Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date"), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the
transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box
(3), (4) or (6) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in its sole discretion,
such written legal opinions, certifications (including an investment letter
in the case of box (3)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer
of registration set forth herein and in Section 315 of the Indenture shall
have been satisfied.
5
Dated: __________________ Signed:________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:_______________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
Dated: ________ _______________________________________
NOTICE: To be executed by an executive
officer
THIS CAPITAL SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS CAPITAL SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THIS
CAPITAL SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND
AGREES FOR THE BENEFIT OF THE TRUST THAT: (I) IT HAS ACQUIRED A
"RESTRICTED" SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL
SECURITY PRIOR TO THE LATER OF THE DATE WHICH IS THREE YEARS AFTER THE DATE
OF ORIGINAL ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE TRUST OR ANY
AFFILIATE OF THE TRUST WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY
PREDECESSOR) EXCEPT (A) TO THE TRUST, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS
CAPITAL SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE, ANY
OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D)
AND (E) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND
THE PROPERTY TRUSTEE FOR SUCH CAPITAL SECURITIES TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO
THEM IN FORM AND SUBSTANCE.
This Capital Security is a Global Certificate within the meaning
of the Declaration hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "Depository"), or
a nominee of the Depository. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Declaration and no transfer of this Capital Security (other than a
transfer of this Capital Security as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository) may be registered except in limited
circumstances.
2
Unless this Capital Security Certificate is presented by an
authorized representative of the Depository to Old Kent Capital Trust I or
its agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of Cede & Co.
or such other name as registered by an authorized representative of the
Depository (and any payment hereon is made to Cede & Co. or to such other
entity as is requested by an authorized representative of the Depository),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has
an interest herein.
CERTIFICATE NO. 1 NUMBER OF CAPITAL SECURITIES: 0
CUSIP NO. U67879 AA 1 $0 AGGREGATE LIQUIDATION AMOUNT
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
OLD KENT CAPITAL TRUST I
FLOATING RATE SUBORDINATED CAPITAL INCOME SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OLD KENT CAPITAL TRUST I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede
& Co. (the "Holder") is the registered owner of $0 aggregate liquidation
amount of capital securities of the Trust representing undivided beneficial
ownership interests in the assets of the Trust designated the Floating Rate
Subordinated Capital Income Securities (liquidation amount $1,000 per
Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in the Declaration (as defined
below). The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities represented hereby are
issued and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust, dated as of January
31, 1997 (as the same may be amended from time to time (the "Declaration"),
among Old Kent Financial Corporation, as Sponsor (the "Company"), Xxxxxx X.
Xxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxx, as Regular Trustees, Bankers
Trust Company, as Property Trustee, and Bankers Trust (Delaware), as
Delaware Trustee. Capitalized terms used herein but not defined shall have
the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee to the extent described therein. The Sponsor
will provide a copy of the Declaration, the Guarantee and the Indenture to
a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
3
By acceptance, the Holder agrees to treat, for U.S. federal
income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of undivided indirect beneficial ownership interests
in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:___________________________________
Name:
Title:
This is one of the Securities referred to in the within-mentioned
Declaration.
BANKERS TRUST COMPANY
By:___________________________________
Authorized Officer
4
In connection with any transfer of this Security occurring prior
to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the
Securities Act covering resales of this Security (which effectiveness shall
not have been suspended or terminated at the date of the transfer) and (ii)
three years after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such
Capital Securities (or any predecessor thereto) (the "Resale Restriction
Termination Date"), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the
transfer:
[CHECK ONE]
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
(3) ___ outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of 1933,
as amended; or
(4) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(5) ___ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(6) ___ pursuant to another available exemption from the registration
requirements of the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; PROVIDED, HOWEVER, that if box
(3), (4) or (6) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in its sole discretion,
such written legal opinions, certifications (including an investment letter
in the case of box (3)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, as amended.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer
of registration set forth herein and in Section 315 of the Indenture shall
have been satisfied.
5
Dated: __________________ Signed:________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:____________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided
by Rule 144A.
Dated: ________ _______________________________________
NOTICE: To be executed by an executive
officer
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NO. C-1 NUMBER OF COMMON SECURITIES: 3,092.784
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
OLD KENT CAPITAL TRUST I
COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Old Kent Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Old
Kent Financial Corporation (the "Holder") is the registered owner of three
thousand ninety two and 784 thousandths (3,092.784) common securities of
the Trust representing an undivided beneficial ownership interest in the
assets of the Trust designated the Floating Rate Common Securities
(liquidation amount $1,000 per Common Security) (the "Common Securities").
The Common Securities are not transferable and any attempted transfer
thereof shall be void. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust,
dated as of January 31, 1997 (as the same may be amended from time to time,
the "Declaration"), among Old Kent Financial Corporation, as Sponsor,
Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxx and Xxxx X. Xxxx, as Regular Trustees,
Bankers Trust Company, as Property Trustee and Bankers Trust Company
(Delaware), as Delaware Trustee. The Holder is entitled to the benefits of
the Guarantee to the extent described therein. Capitalized terms used
herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration, the
Guarantee and the Indenture to a Holder without charge upon written request
to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of an undivided indirect beneficial ownership
interest in the Debentures.
2
IN WITNESS WHEREOF, the Trust has executed this certificate this
31st day of January, 1997.
OLD KENT CAPITAL TRUST I
By:___________________________________
Name:
Title: Regular Trustee
