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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): APRIL 12, 1995
FIRSTMERIT CORPORATION
(Exact name of registrant as specified in its charter)
OHIO 0-10161 34-1339938
(State or other jurisdiction of (Commission (IRS employer identification
incorporation or organization) file number) number)
III CASCADE PLAZA, 7TH FLOOR AKRON, OHIO 44308 (216) 384-8000
(Address of Principal Executive Offices) (Zip Code) (Telephone Number)
Copy to:
KEVIN C. O'NEIL, ESQ.
BROUSE & MCDOWELL
500 First National Tower
Akron, Ohio 44308-1471
(216) 434-5207
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ITEM 5. OTHER EVENTS.
On April 12, 1995, at the Annual Meeting of Shareholders, the
shareholders of FirstMerit Corporation ("FMER"), by the affirmative vote
necessary therefore, approved the Board of Directors' proposals regarding the
amendment of Article Sixth of FMER's Amended and Restated Articles of
Incorporation ("Articles") regarding the indemnification or directors, officers
and other persons, and also approved the form and use of indemnification
agreements for the FMER directors.
On April 27, 1995, FMER, and its wholly owned subsidiary First National
Bank of Ohio ("FNBO"), entered into a Distribution Agreement with Salomon
Brothers Inc, McDonald & Company Securities, Inc. and A.G. Edwards & Sons, Inc.
(collectively the "Agents"), in connection with FNBO's medium and short-term
bank note program which notes may be offered by FNBO from time to time. The
note program has an initial offering price of up to $1,000,000,000. FNBO
intends to use the net proceeds from the sale of the notes for general
corporate purposes, including loans to other banking subsidiaries of FMER. The
notes can only be sold to institutional investors that are "accredited
investors" within the meaning of Rule 501(a) of the Securities Act of 1933, as
amended.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
<TABLE>
<CAPTION>
(C) EXHIBITS.
<S> <C>
3(i) Amended and Restated Articles of Incorporation of FirstMerit Corporation
10(i) Form of Director and Officer Indemnification Agreement and Form of Undertaking
10(ii) Distribution Agreement, by and among FirstMerit Corporation, First National Bank of Ohio and the Agents, dated April
27, 1995
10(iii) Form of First National Bank of Ohio Global Bank Note (Fixed Rate)
10(iv) Form of First National Bank of Ohio Global Bank Note (Floating Rate)
</TABLE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRSTMERIT CORPORATION
Dated: April 27, 1995 By: /s/ Terry E. Patton
---------------------
Terry E. Patton
Secretary
[1074101]
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FIRSTMERIT CORPORATION
CURRENT REPORT ON FORM 8-K
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
<S> <C>
3(i) Amended and Restated Articles of Incorporation of FirstMerit Corporation
10(i) Form of Director and Officer Indemnification Agreement and Form of Undertaking
10(ii) Distribution Agreement, by and among FirstMerit Corporation, First National Bank of Ohio and the Agents, dated April
27, 1995
10(iii) Form of First National Bank of Ohio Global Bank Note (Fixed Rate)
10(iv) Form of First National Bank of Ohio Global Bank Note (Floating Rate)
</TABLE>
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EXHIBIT 3(i)
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
FIRSTMERIT CORPORATION
As of April, 1995
FIRST: The name of the Corporation shall be FIRSTMERIT CORPORATION.
SECOND: The place in Ohio where its principal office is to be located
is in the City of Akron in Summit County, but the Corporation may establish and
maintain its principal office, or other offices, at other places in the United
States of America, as its Board of Directors may, from time to time, determine.
THIRD: The purposes for which the Corporation is formed are as follows:
(a) To engage in business as a "bank holding company" in
accordance with the provisions of The Bank Holding Company Act of 1956
(Pub. Law 511, 84th Cong. 2d Sess., approved May 9, 1956), as amended
(hereinafter referred to as the "Act"), and in furtherance thereof to
purchase or otherwise acquire, own, hold for investment and otherwise
deal with or dispose of real and personal property of every kind, type
and description, wherever situated, and securities, including but not
limited to its own securities and the securities of "banks,"
"companies" and other "bank holding companies," as those terms are
defined in the Act, to render services and otherwise engage in any and
all activities pertinent and appropriate to the operation of a bank
holding company; provided, however, that the Corporation shall not own
or hold properties or securities, render any services or engage in any
activities which are prohibited by the Act, or the regulations
promulgated by the Board of Governors of the Federal Reserve System
thereunder, as amended from time to time.
For the purpose of this paragraph, "securities" shall mean any
and all stocks, bonds, debentures, notes, acceptances, evidences of
indebtedness or other obligations, certificates of interest or
participation in any property or ventures, scrip, interim receipts,
voting trust certificates, any interests or instruments commonly known
as securities, and any and all certificates of interest or
participation in, or of deposit of, any of the foregoing, or receipts
for, guaranties of, or warrants or rights to subscribe for or purchase
the same.
(b) In general, to engage in any other lawful act or activity
for which corporations may be formed under Chapter 1701 of the Ohio
Revised Code to the extent that such act or activity is not prohibited
by the Act, or the regulations promulgated thereunder, as amended from
time to time.
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FOURTH:
PART A. CLASSES OF STOCK
The maximum number of shares which the Corporation is authorized to
issue and to have outstanding at any time shall be Eighty-Seven Million, which
shall be classified as follows:
(a) Eighty Million (80,000,000) of said shares shall be
Common Stock, without par value; and
(b) Seven Million (7,000,000) of said shares shall be Series
Preferred Stock without par value (no par value Preferred Stock).
PART B. SERIES A PREFERRED STOCK
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall
be designated as "Series A Preferred Stock" (the "Series A Preferred Stock")
and the number of shares constituting the Series A Preferred Stock shall be
five hundred thousand (500,000). Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS.
(a) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, no par value, (the "Common Stock") of the
Corporation, and of any other junior 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 (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 A Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (i) $1 or (ii) subject to
the provision for adjustment hereinafter set forth 100 times the
aggregate per share amount of all cash dividends, and 100 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
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 A
Preferred Stock. In the event the Corporation shall at any
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time declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
under clause (ii) 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 A Preferred Stock as provided in paragraph (a) of this
Section 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 $1 per share on the Series A
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 A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
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 A 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 A 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 A
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
SECTION 3. VOTING RIGHTS. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation
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shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per share to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number 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) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or
any similar stock, or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided by
law, holders of Series A 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 A 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 A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends, 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 A Preferred Stock, except
dividends paid ratably on the Series A 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;
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(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior 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 A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
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 A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled 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 subject to the conditions and restrictions on issuance set forth herein,
in the Restated Articles of Incorporation, or in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of Shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except distributions
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made ratably on the Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in clause (1) 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.
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 each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 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 declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A 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 A Preferred Stock
shall not be redeemable.
SECTION 9. RANK. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
SECTION 10. AMENDMENT. The Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special Rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least a majority of the outstanding shares of Series A Preferred
Stock, voting together as a single class.
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PART C. EXPRESS TERMS OF NO PAR VALUE PREFERRED STOCK
The express terms and provisions of the no par value Preferred Stock
shall be as follows:
SECTION 1. DESIGNATION. All shares of no par value Preferred
Stock shall be of equal rank and shall be identical except in respect to the
particulars as may be fixed and determined by the Board of Directors as
hereinafter provided, and each share of each series shall be identical in all
respects with all other shares of such series, except as to the date from which
dividends are cumulative.
The Board of Directors is hereby authorized in respect of any unissued
shares of no par value Preferred Stock to fix or change:
(a) The division of such shares into series, the designation
of each series (which may be by distinguishing number, letter or
title) and the authorized number of shares in each series, which
number may be increased (except where otherwise provided by the Board
of Directors in creating the series) or decreased (but not below the
number of shares thereof outstanding) by like action of the Board of
Directors;
(b) The annual dividend rates of each series;
(c) The dates at which dividends, if declared, shall be
Payable;
(d) The redemption rights and price or prices, if any, for
shares of the series;
(e) The terms and amounts of any Sinking Fund provided for the
purchase or redemption of shares of the series;
(f) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the corporation;
(g) Whether the shares of the series shall be convertible
into Common Stock and, if so, the conversion price or prices and the
adjustments thereof, if any, and all other terms and conditions upon
which such conversion may be made; and
(h) Restrictions on the issuance of shares of the same
series or of any other class or series.
SECTION 2. DIVIDENDS AND DISTRIBUTIONS. The holders of the no par
value Preferred Stock of each series shall be entitled to receive out of any
funds legally available for no par value Preferred Stock as and when declared
by the Board of Directors, dividends in cash at the rate for such series fixed
by the Board of Directors in the manner set forth in Section 1 hereof and no
more, payable quarterly on the dates fixed for such series. Such dividends
shall be cumulative, in the case of shares of each particular series, from and
after the date of issuance
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thereof. No dividends may be paid or declared or set apart for any of the no
par value Preferred Stock for any quarterly dividend period unless at the same
time a like proportionate dividend for the same quarterly dividend period,
ratably in proportion to the respective annual dividend rates fixed therefor,
shall be paid upon or declared or set apart for all no par value Preferred
Stock, of all series then issued and outstanding and entitled to receive such
dividend.
SECTION 3. CERTAIN RESTRICTIONS. In no event, so long as any
no par value Preferred Stock shall be outstanding, shall any dividends, except
a dividend payable in Common Stock, be paid or declared or any distribution be
made, except as aforesaid, on the Common Stock, nor shall any Common Stock be
purchased, retired or otherwise acquired by the corporation:
(a) Unless all accrued and unpaid dividends on no par value
Preferred Stock, including the full dividends for the current
quarterly dividend period, shall have been declared and paid, or a sum
sufficient for payment thereof set apart; and
(b) Unless there shall be no arrearages with respect to the
redemption of no par value Preferred Stock of any series from any
Sinking Fund provided for shares of such series by the Board of
Directors in the manner set forth in Section 1 hereof.
SECTION 4. LIQUIDATION, DISSOLUTION OR WINDING UP.
(a) Subject to the provisions hereof, the holders of the no
par value Preferred Stock of any series shall, in case of voluntary or
involuntary liquidation, dissolution or winding up of the affairs of
the corporation, be entitled to receive in full out of the assets of
the corporation, including its capital, before any amount shall be
paid or distributed among the holders of the Common Stock the amounts
fixed with respect to shares of such series in accordance with the
decision of the Board of Directors in the manner set forth in Section
1 hereof plus an amount equal to all dividends accrued and unpaid
thereon to the date of payment of the amounts due pursuant to such
liquidation, dissolution or winding up of the affairs of the
corporation.
(b) The merger or consolidation of the corporation into or
with any other corporation, or the merger of any other corporation
into it, or the sale, lease or conveyance of all or substantially all
the property of the corporation, shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for
the purpose of this Section 4.
SECTION 5. VOTING RIGHTS. The holders of no par Preferred
Stock shall be entitled at all times to one (1) vote for each share; and,
except as required by law, the holders of such no par value Preferred Stock and
the holders of Common Stock of the corporation shall vote together as one (1)
class on all matters.
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FIFTH: The authority of this Corporation, its shareholders and
directors, is subject to the following:
(a) No holder of shares of this Corporation, regardless of
class, shall be entitled as a matter of right to exercise any
preemptive rights, to subscribe for or to purchase shares of any
class, now or hereafter authorized, or to purchase or subscribe for
securities which are convertible into or exchangeable for shares of
the Corporation, regardless of class, or to which shall be attached or
appertain any warrants or rights entitling the holder thereof to
subscribe for or purchase shares of the Corporation, regardless of
class, except such rights to subscribe for or purchase, at such prices
and according to such terms and conditions as the Board of Directors
may, from time to time, approve and authorize in its sole discretion.
(b) The Corporation may purchase its shares, regardless of
class, from time to time, and upon such terms and conditions as the
Board of Directors shall determine; provided, however, that the
Corporation shall not purchase any of its shares if, after such
purchase, its assets would be less than its liabilities plus stated
capital and unless the Corporation first complies with Section 225.6
of Regulation Y, 12 C.F.R. 225.6, as promulgated and amended, from
time to time, by the Board of Governors of the Federal Reserve System,
to the extent that such regulation may be applicable to the purchase.
(c) No shareholder shall have the right to vote cumulatively
in the election of directors.
SIXTH: The Corporation may indemnify any director or officer, any
former director or officer of the Corporation and any person who is or has
served at the request of the Corporation as a director, officer or trustee of
another corporation, partnership, joint venture, trust or other enterprise (and
his heirs, executors and administrators) against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, to the
full extent permitted by applicable law, as the same may be in effect from time
to time. The indemnification provided for herein shall not be deemed to
restrict the right of the Corporation to (i) indemnify employees, agents and
others as permitted by such law, (ii) purchase and maintain insurance or
provide similar protection on behalf of directors, officers or such other
persons against liabilities asserted against them or expenses incurred by them
arising out of their service to the Corporation as contemplated herein, and
(iii) enter into agreements with such directors, officers, employees, agents or
others indemnifying them against any and all liabilities (or such lesser
indemnification as may be provided in such agreements) asserted against them or
incurred by them arising out of their service to the Corporation as
contemplated herein.
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SEVENTH:
(a) Except as otherwise expressly provided in this Article
SEVENTH, any Business Combination (as hereinafter defined) with an
Interested Party (as hereinafter defined) or any Affiliate (as
hereinafter defined) thereof shall require the affirmative vote of at
least eighty percent (80%) of the outstanding shares of each class of
capital stock of the Corporation issued and outstanding and entitled
to vote as a class and a majority of each class of those shares of
capital stock of the Corporation issued and outstanding and entitled
to vote as a class other than those shares beneficially owned by an
Interested Party and any Affiliate thereof. For the purpose of this
Article SEVENTH, an "Interested Party" is defined as a corporation,
person or entity that, together with all Affiliates thereof, is the
beneficial owner, directly or indirectly, of ten percent (10%) or more
of the shares of any class of capital stock of the Corporation issued
and outstanding and entitled to vote.
(b) The provisions of this Article SEVENTH set forth in
paragraph (a) hereof shall not apply to any Business Combination:
(1) with an Interested Party if the Board of Directors of
the Corporation shall have approved, by resolution, a
memorandum of understanding or agreement with such Interested
Party, a transaction substantially consistent with such
Business Combination prior to or simultaneously at the time
such Interested Party, together with all Affiliates thereof,
became the beneficial owner, directly or indirectly, of ten
percent (10%) or more of any class of the outstanding shares
of capital stock of the Corporation; or
(2) (i) which has been approved at any time before
consummation thereof by a two-thirds (2/3) vote of the total
membership of the Board of Directors of the Corporation and a
majority of the Continuing Directors (as hereinafter defined)
of the Corporation at the time of said vote; and
(ii) which provides for a price to be paid in cash for the
shares of capital stock of the Corporation in an amount not
less than the highest price, including commissions, previously
paid by such Interested Party for any of the shares of the
Corporation's capital stock of that class.
(c) For the purposes of this Article SEVENTH: (1) an
Interested Party shall be deemed to be the beneficial owner of any
shares of capital stock of the Corporation if such Interested Party
would be deemed the beneficial owner of such shares under the General
Rules and Regulations of the Securities Exchange Act of 1934 as
presently in effect, and (2) the term "Affiliate" shall have the
meaning ascribed to such term in Rule 12b-2 of such Rules and
Regulations as presently in effect.
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(d) A majority of the Continuing Directors shall determine for
the purposes of this Article SEVENTH, on the basis of information then
known to it, whether (1) any Interested Party beneficially owns,
together with its Affiliates, directly or indirectly, ten percent
(10%) or more of a class of the outstanding shares of capital stock of
the Corporation entitled to vote as a class, (2) any sale, lease,
exchange or other disposition of part of the assets of the Corporation
involves substantially all of the assets of the Corporation, (3) the
memorandum of understanding or agreement referred to above is
substantially consistent with the transaction to which it relates, and
(4) if an Interested Party purchases capital stock for consideration
other than cash, the "price" paid by the Interested Party for such
capital stock. A corporation, person or other entity purchasing shares
of capital stock of any class directly from the Corporation shall not
be deemed an Interested Person by reason of such purchase if such
determination is not made later than simultaneously with such
purchase. Any such determination by the Continuing Directors shall be
conclusive and binding for all purposes of this Article SEVENTH.
(e) A Business Combination, for the purposes of this Article
SEVENTH, shall mean:
(1) any merger or consolidation of the Corporation, or a
subsidiary of the Corporation, into or with any other person,
corporation or entity; or
(2) any sale, lease, mortgage, pledge, transfer or other
disposition of all or substantially all of the assets of the
Corporation to or with any other corporation, person or
entity; or
(3) any reclassification of securities (including a
reverse stock split) or recapitalization of the Corporation,
or any merger or consolidation of the Corporation with any
subsidiaries or any other transaction which has the effect of
increasing the proportionate share of the outstanding shares
of any class of equity or convertible securities of the
Corporation or any subsidiary which is directly or indirectly
owned by any corporation, person or other entity; or
(4) the issuance or transfer by the Corporation or any
subsidiary (in one transaction or a series of transactions) of
any securities of the Corporation or any subsidiary to any
corporation, person or entity of a number or amount of
securities equal to five percent (5%) or more of the then
outstanding number or amount of any class of the Corporation's
securities to a corporation, person or other entity; or
(5) the adoption of any plan as proposed for liquidation
or dissolution of the Corporation proposed by or on behalf of
any corporation, person or entity.
11
<PAGE> 12
(f) For the purposes of this Article SEVENTH, the term
Continuing Directors shall mean those members of the Board of
Directors of the Corporation (1) elected by the shareholders, or
otherwise appointed, prior to the time when the Interested Party and
any Affiliate acquired four percent (4%) of the shares of a class of
the capital stock of the Corporation issued and outstanding and
entitled to vote or (2) a person recommended to succeed a Continuing
Director by a majority of the Continuing Directors.
(g) This Article SEVENTH may not be amended or repealed except
by the affirmative vote of the holders of at least eighty percent
(80%) of the shares of each class of capital stock of the Corporation
issued and outstanding and entitled to vote as a class, and a majority
of those shares of each class of capital stock of the Corporation
issued and outstanding and entitled to vote as a class other than
those shares beneficially owned by an Interested Party and any
Affiliate thereof; provided, however, that the only vote required for
amendment or repeal shall be the affirmative vote of the holders of
two-thirds (2/3) of such issued and outstanding shares if the Board of
Directors of the Corporation proposes the amendment or repeal by
resolution approved by seventy-five percent (75%) of the total
membership of the Board of Directors and a majority of the Continuing
Directors.
Revised April, 1995
[1057761]
12
<PAGE> 1
EXHIBIT 10(i)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT made this ____ day of ____________,
19___, between FirstMerit Corporation, an Ohio corporation (the "Company") and
________________________________, a director, officer, employee, agent or
representative (as hereinafter defined) of the Company (the "Indemnitee").
R E C I T A L S:
A. The Company and the Indemnitee are each aware of the exposure to
litigation of officers, directors, employees, agents and representatives of the
Company as such persons exercise their duties to the Company;
B. The Company and the Indemnitee are also aware of conditions in the
insurance industry that have affected and may continue to affect the Company's
ability to obtain appropriate liability insurance on an economically acceptable
basis;
C. The Company desires to continue to benefit from the services of
highly qualified, experienced and otherwise competent persons such as the
Indemnitee;
D. The Indemnitee desires to serve or to continue to serve the
Company as a director, officer, employee, or agent or as a director, officer,
employee, agent, or trustee of another corporation, joint venture, trust or
other enterprise in which the Company has a direct or indirect ownership
interest, for so long as the Company continues to provide, on an acceptable
basis, adequate and reliable indemnification against certain liabilities and
expenses which may be incurred by the Indemnitee.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. INDEMNIFICATION. The Company shall indemnify the Indemnitee with
respect to his activities as a director, officer, employee or agent of the
Company and/or as a person who is serving or has served at the request of the
Company ("representative") as a director, officer, employee, agent or trustee
of another corporation, joint venture trust or other enterprise, domestic or
foreign, in which the Company has a direct or indirect ownership interest (an
"affiliated entity") against expenses (including, without limitation,
attorneys' fees, judgments, fines and amounts paid in settlement) actually and
reasonably incurred by him ("Expenses") in connection with any claim against
Indemnitee which is the subject of any threatened, pending or completed action,
suit or other type of proceeding, whether civil, criminal, administrative,
investigative or otherwise and whether formal or informal (a "Proceeding"), to
which Indemnitee was, is or is threatened to be made a party by reason of facts
which include Indemnitee's being or having been such a director, officer,
employee, agent or representative, to the extent of the highest and most
advantageous to the Indemnitee, as determined by the Indemnitee, of one or any
combination of the following:
(a) The benefits provided by the Company's Amended and Restated
Articles of Incorporation, as amended ("Articles") in effect on the
date hereof, a copy of the relevant portions of which are attached
hereto as Exhibit A;
<PAGE> 2
(b) The benefits provided by the Articles, the Company's Code of
Regulations ("Regulations"), or their equivalent of the Company in
effect at the time Expenses are incurred by Indemnitee;
(c) The benefits allowable under Ohio law in effect at the date
hereof;
(d) The benefits allowable under the law of the jurisdiction under
which the Company exists at the time Expenses are incurred by the
Indemnitee;
(e) The benefits available under any liability insurance obtained
by the Company; and
(f) Such other benefits as are or may be otherwise available to
Indemnitee.
Combination of two or more of the benefits provided by (a) through (f)
shall be available to the extent that the Applicable Document (as hereafter
defined), does not require that the benefits provided therein be exclusive of
other benefits. The document or law providing for the benefits listed in items
(a) through (f) above is called the "Applicable Document" in this Agreement.
Company hereby undertakes to use its best efforts to assist Indemnitee, in all
proper and legal ways, to obtain the benefits selected by Indemnitee under item
(a) through (f) above.
For purposes of this Agreement, references to "other enterprises"
shall include employee benefit plans for employees of the Company or of any
affiliated entity without regard to ownership of such plans; references to
"fines" shall include any excise taxes assessed on the Indemnitee with respect
to any employee benefit plan; references to "serving at the request of the
Company" shall include any service as a director, officer, employee or agent of
the Company which imposes duties on, or involves services by, the Indemnitee
with respect to an employee benefit plan, its participants or beneficiaries;
references to the masculine shall include the feminine; references to the
singular shall include the plural and vice versa; and if the Indemnitee acted
in good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan, he shall be
deemed to have acted in a manner consistent with the standards required for
indemnification by the Company under the Applicable Documents.
2. INSURANCE. The Company may, but need not, maintain liability
insurance for so long as Indemnitee's services are covered hereunder, provided
and to the extent that such insurance is available on a basis acceptable to the
Company. However, the Company agrees that the provisions hereof shall remain
in effect regardless of whether liability or other insurance coverage is at any
time obtained or retained by the Company; except that any payments in fact made
to Indemnitee under an insurance policy obtained or retained by the Company
shall reduce the obligation of the Company to make payments hereunder by the
amount of the payments made under any such insurance policy.
3. PAYMENT OF EXPENSES. At Indemnitee's request, after receipt of
written notice pursuant to Section 5 hereof and an undertaking in the form of
Exhibit B attached hereto by or on behalf of Indemnitee to repay such amounts
so paid on Indemnitee's behalf if it shall ultimately be determined under the
Applicable Document that Indemnitee is not entitled to be indemnified by the
Company for such Expenses, the Company shall pay the Expenses as and when
incurred by Indemnitee. That portion of Expenses which represents attorneys
fees and other costs incurred in defending any proceeding shall be paid by the
Company within thirty (30) days of its receipt of such request, together with
reasonable
-2-
<PAGE> 3
documentation evidencing the amount and nature of such Expenses, subject to its
also having received such a notice and undertaking.
4. ADDITIONAL RIGHTS. The indemnification provided in this Agreement
shall not be exclusive of any other indemnification or right to which
Indemnitee may be entitled and shall continue after Indemnitee has ceased to
occupy a position as an officer, director, employee, agent or representative as
described in Section 1 above with respect to Proceedings relating to or arising
out of Indemnitee's acts or omissions during his service in such position.
5. NOTICE TO COMPANY. Indemnitee shall provide to the Company prompt
written notice of any Proceeding brought, threatened, asserted or commenced
against Indemnitee with respect to which Indemnitee may assert a right to
indemnification hereunder; provided that failure to provide such notice shall
not, in any way, limit Indemnitee's rights under this Agreement.
6. COOPERATION IN DEFENSE AND SETTLEMENT. Indemnitee shall not make
any admission or effect any settlement without the Company's written consent
unless Indemnitee shall have determined to undertake his own defense in such
matter and has waived the benefits of this Agreement. The Company shall not
settle any Proceeding to which Indemnitee is a party in any manner which would
impose any Expense on Indemnitee without his written consent. Neither
Indemnitee nor the Company will unreasonably withhold consent to any proposed
settlement. Indemnitee and the Company shall cooperate to the extent
reasonably possible with each other and with the Company's insurers, in
attempts to defend and/or settle such Proceeding.
7. ASSUMPTION OF DEFENSE. Except as otherwise provided below, to the
extent that it may wish, the Company jointly with any other indemnifying party
similarly notified will be entitled to assume Indemnitee's defense in any
Proceeding, with counsel mutually satisfactory to Indemnitee and the Company.
After notice from the Company to Indemnitee of the Company's election so to
assume such defense, the Company will not be liable to Indemnitee under this
Agreement for Expenses subsequently incurred by Indemnitee in connection with
the defense thereof other than reasonable costs of investigation or as
otherwise provided below. Indemnitee shall have the right to employ counsel in
such Proceeding, but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof shall be at
Indemnitee's expense unless:
(a) The employment of counsel by Indemnitee has been authorized by
the Company;
(b) Counsel employed by the Company initially is unacceptable or
later becomes unacceptable to Indemnitee and such unacceptability is
reasonable under then existing circumstances;
(c) Indemnitee shall have reasonably concluded that there may be a
conflict or interest between Indemnitee and the Company in the conduct
of the defense of such Proceeding; or
(d) The Company shall not have employed counsel promptly to assume
the defense of such Proceeding, in each of which cases the fees and
expenses of counsel shall be at the expense of the Company and subject
to payment pursuant to this Agreement. The Company shall not be
entitled to assume the defense of Indemnitee in any Proceeding brought
by or on behalf of the Company or as to which Indemnitee shall have
made either of the conclusions provided for in clauses (b) or (c)
above.
-3-
<PAGE> 4
8. EXCLUSIONS. Notwithstanding the scope of indemnification which may
be available to Indemnitees from time to time under any Applicable Document, no
indemnification, reimbursement or payment shall be required of the Company
hereunder with respect to: (i) any Proceeding initiated by Indemnitee without
the consent or authorization of the Board of Directors of the Company, provided
that this exclusion shall not apply with respect to any claims brought by
Indemnitee to enforce his rights under this Agreement or in any Proceeding
initiated by another person or entity whether or not such claims were brought
by Indemnitee against a person or entity who was otherwise a party to such
Proceeding,or (ii) those actions, fines or penalties specifically excluded from
indemnification coverage under applicable Ohio law. Nothing in this Section 8
shall eliminate or diminish Company's obligations to advance that portion of
Indemnitee's Expenses which represent attorneys' fees and other costs incurred
in defending any proceeding pursuant to Section 3 of this Agreement.
9. EXTRAORDINARY TRANSACTIONS. The Company covenants and agrees that
in the event of any merger, consolidation or reorganization in which the
Company is not the surviving entity, any sale of all or substantially all of
the assets of the Company or any liquidation of the Company (each such event is
hereinafter referred to as an "extraordinary transaction"), the Company shall:
(a) Have the obligations of the Company under this Agreement
expressly assumed by the survivor, purchaser or successor, as the case
may be, in such extraordinary transaction; or
(b) Otherwise adequately provide for the satisfaction of the
Company's obligations under this Agreement, in a manner acceptable to
Indemnitee.
10. NO PERSONAL LIABILITY. Indemnitee agrees that neither the
Directors nor any officer, employee, representative or agent of the Company
shall be personally liable for the satisfaction of the Company's obligations
under this Agreement, and Indemnitee shall look solely to the assets of the
Company for satisfaction of any claims hereunder.
11. SEVERABILITY. If any provision, phrase or other portion of this
Agreement should be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable, in whole or in part, and such determination
should become final, such provision, phrase or other portion shall be deemed to
be severed or limited, but only to the extent required to render the remaining
provisions and portions of the Agreement enforceable, and the Agreement as thus
amended shall be enforced to give effect to the intention of the parties
insofar as that is possible.
12. SUBROGATION. In the event of any payment under this Agreement,
the Company shall be subrogated to the extent thereof to all rights to
indemnification or reimbursement against any insurer or other entity or person
vested in the Indemnitee, who shall execute all instruments and take all other
actions as shall be reasonably necessary for the Company to enforce such
rights.
13. GOVERNING LAW. The parties hereto agree that this Agreement
shall be construed and enforced in accordance with and governed by the laws of
the State of Ohio.
14. NOTICES. All notices, requests, demands and other
communications hereunder shall be in writing and shall be considered to have
been duly given if delivered by hand and receipted for by the party to whom the
notice, request, demand or other communication shall have been directed, or
mailed by Certified mail, return receipt requested, with postage prepaid;
-4-
<PAGE> 5
If to the Company, to: FirstMerit Corporation
III Cascade Plaza
Akron, Ohio 44308
Attention: Secretary
If to Indemnitee, to: ______________________
______________________
______________________
or to such other or further address as shall be designated from time to time by
the Indemnitee or the Company to the other.
15. TERMINATION. This Agreement may be terminated by either party
upon not less than sixty (60) days' prior written notice delivered to the other
party, but such termination shall not in any way diminish the obligations of
Company hereunder with respect to Indemnitee's activities prior to the
effective date of termination.
16. AMENDMENTS. This Agreement and the rights and duties of
Indemnitee and the Company hereunder may not be amended, modified or terminated
except by written instrument signed and delivered by the parties hereto. This
Agreement is and shall be binding upon and shall inure to the benefits of the
parties thereto and their respective heirs, executors, administrators,
successors and assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
FIRSTMERIT CORPORATION
By:____________________________________
Its:___________________________________
INDEMNITEE
_______________________________________
Title:_________________________________
[94686]
-5-
<PAGE> 6
EXHIBIT A
FIRSTMERIT CORPORATION
AMENDED AND RESTATED ARTICLES OF INCORPORATION
ARTICLE SIXTH
INDEMNIFICATION
SIXTH: The Corporation may indemnify any director or officer, any former
director or officer of the Corporation and any person who is or has served at
the request of the Corporation as a director, officer or trustee of another
corporation, partnership, joint venture, trust or other enterprise (and his
heirs, executors and administrators) against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him by reason of the fact that he is or was such director, officer
or trustee in connection with any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, to the
full extent permitted by applicable law, as the same may be in effect from time
to time. The indemnification provided for herein shall not be deemed to
restrict the right of the Corporation to (i) indemnify employees, agents and
others as permitted by such law, (ii) purchase and maintain insurance or
provide similar protection on behalf of directors, officers or such other
persons against liabilities asserted against them or expenses incurred by them
arising out of their service to the Corporation as contemplated herein, and
(iii) enter into agreements with such directors, officers, employees, agents or
others indemnifying them against any and all liabilities (or such lesser
indemnification as may be provided in such agreements) asserted against them or
incurred by them arising out of their service to the Corporation as
contemplated herein.
<PAGE> 7
EXHIBIT B
FORM OF UNDERTAKING
THIS UNDERTAKING has been entered into by ______________
("Indemnitee") pursuant to an Indemnification Agreement dated ________, 19__
(the "Indemnification Agreement"), between FirstMerit Corporation (the
"Company"), an Ohio corporation, and Indemnitee.
R E C I T A L S :
A. Pursuant to the Indemnification Agreement, Company agreed to pay
Expenses (within the meaning of the Indemnification Agreement) as and when
incurred by Indemnitee in connection with any claim against Indemnitee which is
the subject of any threatened, pending or completed action, suit or proceeding,
whether civil, criminal or investigative, to which Indemnitee was, is or is
threatened to be made a party by reason of facts which include Indemnitee's
being or having been a director, officer or representative (within the meaning
of the Indemnification Agreement) of Company;
B. Such claim has arisen against Indemnitee and Indemnitee has
notified Company thereof in accordance with the terms of Section 5 of the
Indemnification Agreement (hereinafter the "Proceeding");
C. Indemnitee believes that Indemnitee should prevail in this
Proceeding and it is in the interest of both Indemnitee and Company to defend
against the claims against Indemnitee thereunder;
NOW, THEREFORE, Indemnitee hereby agrees that in consideration of
Company's advance payment of Indemnitee's Expenses incurred prior to a final
disposition of the Proceeding, Indemnitee hereby undertakes to reimburse
Company for any and all expenses paid by Company on behalf of Indemnitee prior
to a final disposition of the Proceeding in the event that Indemnitee is
determined under the Applicable Document (within the meaning of the
Indemnification Agreement) not to be entitled to indemnification for such
Expenses pursuant to the Indemnification Agreement and applicable law, provided
that if Indemnitee is entitled under the Applicable Document to indemnification
for some or a portion of such Expenses, Indemnitee's obligation to reimburse
Company shall only be for those Expenses for which Indemnitee is determined not
to be entitled to indemnification. Such reimbursement or arrangements for
reimbursement by Indemnitee shall be consummated within ninety (90) days after
a determination that Indemnitee is not entitled to indemnification and
reimbursement pursuant to the Indemnification Agreement and applicable law.
IN WITNESS WHEREOF, the undersigned has set his hand this ____ day of
___________, 19__.
___________________________________
Indemnitee
<PAGE> 1
EXHIBIT 10(ii)
FIRST NATIONAL BANK OF OHIO
Bank Notes
DISTRIBUTION AGREEMENT
April 27, 1995
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
MCDONALD & COMPANY SECURITIES, INC.
McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2603
A.G. EDWARDS & SONS, INC.
One North Jefferson Avenue
St. Louis, Missouri 63103
Ladies and Gentlemen:
First National Bank of Ohio, a national banking association
organized under the laws of the United States (the "Bank"), confirms its
agreement with Salomon Brothers Inc, McDonald & Company Securities, Inc. and
A.G. Edwards & Sons, Inc. with respect to the issue and sale by the Bank from
time to time of its unsecured debt obligations not insured by the Federal
Deposit Insurance Corporation (the "FDIC"), called bank notes with maturities
from 30 days to not more than one year from date of issue ("Short-Term Bank
Notes") and with maturities from more than one year from date of issue
("Medium-Term Bank Notes", and together with the Short-Term Bank Notes, the
"Notes"). The Notes will be issued pursuant to an Issuing and Paying Agency
Agreement, dated as of April 27, 1995 (the "Paying Agency Agreement"), between
the Bank and Chemical Bank, as issuing and paying agent (the "Paying Agent").
As of the date hereof, the Bank has authorized the issuance and sale of up to
an aggregate initial offering price of $1,000,000,000 of Notes. It is
understood, however, that the Bank may from time to time authorize the issuance
of additional Notes and that such additional Notes may be sold by or through
the Agents (as defined below) pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
<PAGE> 2
Unless otherwise specifically provided for and set forth in the
applicable Pricing Supplement (as defined below), the Notes will (i) be issued
in minimum denominations of $250,000 and in denominations exceeding such amount
by integral multiples of $1,000, (ii) be issued in fully registered form and
(iii) have the interest rates, maturities and, if applicable, other terms set
forth in the applicable Pricing Supplement. The Notes will be issued, and the
terms thereof established, in accordance with the Paying Agency Agreement. For
the purposes of this Agreement, the term "Agent" shall refer to any of you
acting solely in the capacity as agent for the Bank pursuant to Section 2(a)
and not as principal (collectively, the "Agents), the term "Purchaser" shall
refer to one of you acting solely as principal pursuant to Section 2(b) and not
as agent, and the term "you" shall refer to you collectively whether at any
time any of you are acting in both such capacities or in either such capacity.
In acting under this Agreement, in whatever capacity, each of you is acting
individually and not jointly.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Bank and the
Parent (as defined below) each represents and warrants to each Agent as of the
date hereof, as of the date of each acceptance by the Bank of an offer for the
purchase of Notes (whether through such Agent as agent or to such Agent as
principal), as of the date of each delivery of Notes (whether through such
Agent as agent or to such Agent as principal) (the date of each such delivery
to an Agent as principal, a "Settlement Date"), and as of the times referred to
in Section 6(b) hereof (each of the times referenced above, a "Representation
Date"), as follows:
I. The Bank has prepared an offering circular dated April 27,
1995 (as hereafter amended or supplemented, including material
incorporated therein by reference, the "Offering Circular") to be used
by the Agents in connection with the Agents' solicitation of
purchasers of or offering of the Notes. The Offering Circular, as of
the date hereof, does not and, as of the applicable Representation
Date, will not contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the foregoing representations
shall not apply to statements in or omissions from the Offering
Circular made in reliance upon and in conformity with information
furnished to the Bank in writing by the Agents expressly for use
therein.
II. The documents incorporated by reference in the Offering
Circular, at the time they were or hereafter are filed with the
applicable Federal regulatory authorities, including, without
limitation, the FDIC on behalf of the Comptroller of the Currency,
complied or when so filed will comply, as the case may be, in all
material respects with the requirements of the Securities Exchange Act
of 1934, as amended (the "1934 Act") and the rules and regulations
promulgated thereunder or the rules and regulations otherwise
applicable thereto including, without limitation, the Federal
Financial Institutions Examination Council, as the case may be, and,
when read together with the other information in the Offering
Circular, did not and will not contain an untrue statement of a
material fact or omit to state
2
<PAGE> 3
a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
III. The consolidated financial statements of FirstMerit
Corporation (as defined below) and its subsidiaries incorporated by
reference in the Offering Circular present fairly the consolidated
financial position of FirstMerit Corporation and its subsidiaries as
of the dates indicated and the consolidated results of their
operations for the periods specified; and, except as stated therein,
said financial statements have been prepared in conformity with
generally accepted accounting principles in the United States applied
on a consistent basis; the Call Reports and other financial
information of the Bank included or incorporated by reference in the
Offering Circular present fairly the financial position of the Bank as
of the dates indicated and the results of its operations for the
periods specified therein, and except as stated therein, have been
prepared in conformity with regulatory instructions issued by the
Federal Financial Institution Examination Council applied on a
consistent basis.
IV. The Bank is a national banking association duly organized
and validly existing as a banking institution under the laws of the
United States, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Offering
Circular and to execute, deliver and perform its obligations under the
Notes, the Paying Agency Agreement, the Calculation Agency Agreement,
dated as of April 27, 1995 (the "Calculation Agency Agreement") by and
between the Bank and Chemical Bank, as calculation agent, this
Agreement and any Terms Agreement. FirstMerit Corporation, an Ohio
corporation (the "Parent"), has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Ohio. The Parent is duly registered under the Bank Holding Company
Act of 1956, as amended (the "Bank Holding Company Act"), and is
required to file periodic reports with the Securities and Exchange
Commission (the "SEC"), pursuant to the 1934 Act. The Parent owns all
the issued and outstanding common stock of the Bank.
V. Since the respective dates as of which information is given
in the Offering Circular, there has not been any material adverse
change, or any development involving a prospective material adverse
change in the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Bank and its
subsidiaries or the Parent and its subsidiaries, as the case may be,
considered as one enterprise, whether or not arising in the ordinary
course of business, other than as set forth therein, and there have
been no transactions entered into by the Parent or the Bank or any of
their subsidiaries which materially affect the business or operations
of the Bank or the Parent, other than as set forth therein.
VI. Each of this Agreement and any Terms Agreement (as defined
below) has been duly authorized, executed and delivered by the Bank.
3
<PAGE> 4
VII. Each of the Paying Agency Agreement and the Calculation
Agency Agreement, dated as of April 27, 1995 (the "Calculation Agency
Agreement"), by and between the Bank and Chemical Bank, as calculation
agent, has been duly authorized, executed and delivered by the Bank
and is a valid and binding agreement of the Bank enforceable in
accordance with its terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally or the rights of creditors or of
the FDIC as insurer, regulator, conservator or receiver of banks the
accounts of which are insured by the FDIC in particular or by general
equity principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
VIII. The Notes have been duly and validly authorized by the
Bank for issuance, offer and sale pursuant to this Agreement and, when
executed, authenticated and delivered pursuant to the provisions of
the Paying Agency Agreement, this Agreement and any applicable Terms
Agreement, against payment of consideration therefor, will constitute
legally valid and binding obligations of the Bank enforceable in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally or the rights of creditors, or
of the FDIC as insurer, regulator, conservator or receiver of banks
the accounts of which are insured by the FDIC in particular, or by
general equity principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and the summary
descriptions of the Notes and the Paying Agency Agreement contained in
the Offering Circular are fair and accurate summaries of such
documents.
IX. The Notes are exempt from registration under the Securities
Act of 1933, as amended (the "1933 Act"), pursuant to Section 3(a)(2)
thereof, and neither registration of the Notes under the 1933 Act nor
qualification of an indenture under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") will be required in connection
with the offer, sale, issuance or delivery of the Notes.
X. The Bank is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
XI. The Bank is eligible to use the abbreviated registration
system of the Office of the Comptroller of the Currency (the "OCC")
provided for under Section 16.6 of the OCC's Securities Offering
Disclosure Rules (12 CFR Section 16.6) (the "OCC Offering Rules") for
the Notes; the requirements of subparagraphs (a)(1), (a)(2), (a)(3)
and (a)(4) of Section 16.6 have been satisfied; all filings required
to be made by the Bank on or prior to the applicable Representation
Date pursuant to Section 16.6(a)(6) in connection with the issuance
and sale of the Notes in accordance with the terms of this Agreement
have been made; and any and all filings required to be made by the
Bank subsequent to the applicable
4
<PAGE> 5
Representation Date will be made when and as required under such
Section 16.6(a)(6).
XII. No consent, approval or authorization of or filing with any
governmental body or agency is required for the execution, delivery
and performance by the Bank of this Agreement, any Terms Agreement,
the Paying Agency Agreement, the Calculation Agency Agreement or the
Notes, except such as have been made or obtained or as may be required
by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
XIII. Neither the Parent nor the Bank is in violation of its
charter or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of them
may be bound, or to which any of their property or assets is subject;
the execution, delivery and performance of this Agreement, any Terms
Agreement, the Paying Agency Agreement, the Calculation Agency
Agreement and the Notes and the consummation of the transactions
contemplated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with, or constitute a
breach of or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Parent or the Bank or any of their subsidiaries pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Parent or the Bank or any of their
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Parent or the Bank or
any such subsidiary is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the Parent or
the Bank or any applicable law, administrative regulation or
administrative or court order or decree of any court or governmental
agency or body having jurisdiction over the Parent or the Bank.10
XIV. Except as set forth in the Offering Circular, there is no
action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Parent or the Bank, threatened, against the Parent or the Bank
or any of their subsidiaries that could reasonably be expected to
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of either the Parent or the Bank and its respective subsidiaries each
considered as one enterprise, or which could reasonably be expected to
materially and adversely affect the properties or assets thereof or
which could reasonably be expected to materially and adversely affect
the consummation of this Agreement or any Terms Agreement; all pending
legal or governmental proceedings to which the Parent or the Bank or
any of their subsidiaries is a party or of which any of their
respective properties or assets is the subject that are not described
in the Offering Circular, including ordinary routine litigation
incidental to its business, are, considered in the aggregate, not
material.
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<PAGE> 6
XV. The Notes are unsecured and unconditional general
obligations of the Bank and rank pari passu with all other general
unsecured and unsubordinated obligations of the Bank, subject to the
provisions of amended section 11(d)(11) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1821(d)(11), as enacted by section
3001 of title III of the Omnibus Budget Reconciliation Act of 1993
(August 10, 1993).
XVI. All pending legal or governmental proceedings to which the
Parent or the Bank or any of their subsidiaries is a party or of which
any of their respective property or assets is the subject that are not
described in the Offering Circular, including ordinary routine
litigation incidental to their respective businesses, are considered
in the aggregate, not material.
XVII. Any certificate signed by any officer of the Bank or the
Parent and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes contemplated by this Agreement
shall be deemed a representation and warranty by the Bank or the
Parent, as the case may be, to the Agents as to the matters covered
thereby as of the date of such certificate and at each Representation
Date subsequent thereto.
SECTION 2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS OF
OFFERS TO PURCHASE; SALES OF NOTES TO A PURCHASER. (a) Subject to the terms
and conditions set forth herein, the Bank hereby authorizes each of the Agents
to act as its agent to solicit offers for the purchase of all or part of the
Notes from the Bank. On the basis of the representations and warranties herein
set forth, and subject to the terms and conditions herein set forth, each Agent
agrees, as an agent of the Bank, to use its reasonable efforts to solicit
offers to purchase the Notes upon the terms and conditions set forth in the
Offering Circular. Each Agent shall make reasonable efforts to assist the Bank
in obtaining performance by each purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by the Bank, but such Agent shall
not, except as otherwise provided in this Agreement, have any liability to the
Bank in the event any such purchase is not consummated for any reason. Except
as provided in Section 2(b) hereof, under no circumstances shall any Agent be
obligated to purchase any Notes for its own account. It is understood and
agreed, however, that any Agent may purchase Notes as principal pursuant to
Section 2(b) hereof.
So long as this Agreement shall remain in effect with respect to
any Agent, the Bank shall not, without the consent of such Agent, solicit or
accept offers to purchase, or sell, Notes or any other debt securities with a
maturity at the time of original issuance of 9 months or more except pursuant
to this Agreement and any Terms Agreement. The Bank, however, reserves the
right to sell, and accept offers to purchase, Notes directly on its own behalf
to investors (other than broker-dealers, except to the extent set forth in the
next succeeding sentence). The Bank may from time to time offer Notes for sale
otherwise than through an Agent; provided, however, that so long as this
Agreement shall be in effect the Bank shall not solicit or accept offers to
purchase Notes through any agent other than an Agent without amending this
Agreement to appoint such agent an additional
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<PAGE> 7
Agent hereunder on the same terms and conditions as provided herein for the
Agents and without giving the Agents prior notice of such appointment; except,
that if from time to time the Bank is approached by a prospective agent
offering to solicit a specific purchase of Notes, the Bank may engage such
agent with respect to such specific purchase, only if, (i) the Bank shall not
have solicited such offer, (ii) such agent is engaged on terms substantially
similar (including the same commission schedule as set forth herein) to the
applicable terms of this Agreement (without being required to become a party
hereto) and (iii) the Bank shall have notified the Agents prior to the
acceptance of such an offer.
The Bank reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents commencing at any
time for any period of time or permanently. Upon receipt of instructions from
the Bank, the Agents shall forthwith suspend solicitation of offers to purchase
Notes from the Bank until such time as the Bank has advised them that such
solicitation may be resumed.
The Bank shall have the sole right to accept offers to purchase
the Notes and may reject any such offer in whole or in part. Each Agent shall
have the right, in its sole discretion, to reject any offer to purchase Notes,
as a whole or in part, that it considers to be unacceptable and any such
rejection shall not be deemed a breach of its agreement herein contained.
The Bank agrees to pay each Agent a commission, with respect to
each sale of each Note by the Bank as a result of a solicitation made by such
Agent, in an amount equal to that percentage specified in Schedule I hereto of
the aggregate principal amount of each such Note sold by the Bank.
Subject to the provisions of this Section, offers to purchase
Notes may be solicited by an Agent for the Bank at such time and in such
amounts as such Agent deems advisable.
If the Bank shall default in its obligations to deliver Notes to
a purchaser whose offer it has accepted, the Bank and the Parent shall
indemnify and hold each of you harmless against any loss, claim or damage
arising from or as a result of such default by the Bank.
(b) Subject to the terms and conditions stated herein, whenever
the Bank and any of you determine that the Bank may sell Notes directly to any
of you as principal, each such sale of Notes shall be made in accordance with
the terms of this Agreement and a supplemental agreement relating to such sale.
Each such supplemental agreement (which may be either a written agreement or an
oral agreement, with written confirmation prepared by the Agent and either
telecopied or mailed to the Bank) is herein referred to as a "Terms Agreement."
Each Terms Agreement shall describe the relevant Notes, specifying the
aggregate principal amount, the price, the maturity, the interest rate or
interest rate basis, if any, the record, interest payment and settlement dates,
the location of closing, the method of payment and any required opinions of
counsel or certificates from the Bank, the Parent and their officers as
described in Sections 5(a), (c) and (d)
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<PAGE> 8
hereof. Any such Terms Agreement may also specify the period of time referred
to in Section 4(g) hereof. Any written Terms Agreement may be in the form
attached as Exhibit A hereto. The Purchaser's commitment to purchase Notes
shall be deemed to have been made on the basis of the representations and
warranties of the Bank and the Parent herein set forth and shall be subject to
the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser in
accordance with a Terms Agreement shall be made not later than the Closing Date
agreed to in such Terms Agreement, against payment of funds to the Bank in the
net amount due to the Bank for such Notes by the method and in the form
established by the Purchaser unless otherwise agreed to between the Bank and
the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Bank and the Purchaser in
a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such
Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Terms Agreement, at a
fixed public offering price. In connection with any resale of Notes, a
Purchaser may use a selling or dealer group and may reallow to any broker or
dealer any portion of the discount or commission payable pursuant thereto.
SECTION 3. OFFERING AND SALE OF NOTES. Each Agent and the Bank
agree to perform the respective duties and obligations specifically provided to
be performed by them herein and in the Offering Circular as in effect on the
date hereof, unless otherwise agreed to in writing by the Bank and each Agent.
Administrative procedures with respect to the Notes shall be
agreed upon from time to time by the Agents, the Bank and the Paying Agent (the
"Procedures"). The Agents and the Bank agree to perform, and the Bank agrees
to cause the Paying Agent to agree to perform, their respective duties and
obligations specifically provided to be performed by them in the Procedures.
SECTION 4. AGREEMENTS. The Bank agrees with each Agent as
follows:
(a) The Bank shall give each Agent notice of its intention to
prepare any additional offering circular supplement with respect to the sale of
Notes or any amendment or supplement to the Offering Circular.
(b) The Bank shall deliver to each Agent as many copies of the
Offering Circular (as amended or supplemented, including documents incorporated
by reference therein) as each Agent shall reasonably request in connection with
sales or solicitations of offers to purchase the Notes.
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<PAGE> 9
(c) Except as otherwise provided in subsection (d) of this
Section 4, if any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel
for the Bank, to amend or supplement the Offering Circular in order that the
Offering Circular not include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in light of the circumstances at the time it is delivered to a
purchaser, immediate notice shall be given, and confirmed in writing, to each
Agent to cease the solicitation of offers to purchase Notes in its capacity as
agent and to cease sales of any Notes each Agent may have purchased from the
Bank and then own as principal, and the Bank shall promptly prepare such
amendment or supplement as may be necessary to correct such untrue statement or
omission. Each Agent shall thereafter resume solicitation of offers to
purchase Notes at such time as the Bank shall have furnished to each Agent an
amended or supplemented Offering Circular in form reasonably satisfactory to
the Agents and their counsel.
(d) The Bank shall not be required to comply with the
provisions of subsection (c) of this Section 4 during any period commencing
with the time (i) each Agent suspends solicitation of purchases of the Notes
in its capacity as agent pursuant to a request from the Bank and (ii) no Agent
(A) holds any Notes purchased from the Bank as principal for resale or (B) has
arranged for the purchase from the Bank of any Notes on a subsequent Settlement
Date, and ending with the time the Bank shall determine to resume the sale or
the solicitation of purchases of the Notes.
(e) The Bank shall furnish to the Agents, upon the request of
any Agent, any publicly available reports or communications (financial or
otherwise) furnished to or filed by either the Bank or the Parent with any
United States or state supervisory or regulatory authority as promptly as
practicable after such reports become publicly available.
(f) The Bank shall prepare, with respect to any Notes to be
sold through or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously agreed to by the Agents and the
Bank.
(g) Unless otherwise agreed pursuant to the terms of a Terms
Agreement, between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Bank shall not, without the prior consent
of the Agent who is party to such Terms Agreement, offer or sell or enter into
any agreement to sell in the United States to or through securities dealers,
any deposits or debt securities of the Bank (other than the Notes that are to
be sold pursuant to such Terms Agreement and deposits or debt securities (other
than Notes) sold in the ordinary course of business (i) directly by the Bank
and not through a securities dealer or (ii) through a securities broker or
dealer affiliated with the Bank).
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<PAGE> 10
(h) The Bank shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the fees
and disbursements of the relevant accountants, the preparation and delivery of
the Offering Circular and all amendments and supplements thereto, the
preparation of this Agreement and any Terms Agreement and all other documents
relating to the transactions contemplated hereby, the preparation, issuance and
delivery of the Notes, including any fees and expenses incurred by the Bank and
related to the use of book-entry notes, the reasonable fees and disbursements
of the Bank's and the Parent's counsel, of the Paying Agent and its counsel and
of any calculation agents or exchange rate agents, any reasonable advertising
and other out-of-pocket expenses of the Agents incurred by the Agents in
connection with the transactions contemplated hereby, the qualification of the
Notes under state securities laws in any jurisdiction where qualification or
other action is required and the filing fees and the reasonable fees and
expenses of counsel for the Agents in connection therewith (as may be agreed by
the Bank and the Agents from time to time hereafter) and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey, the cost of
preparing and providing any CUSIP or other identification numbers for the
Notes, the fees of any agency that rates the Notes and the fees and reasonable
expenses of counsel for the Agents in connection with this Agreement. In
addition, the Bank shall pay the reasonable fees and disbursements of counsel
to the Agents incurred in connection with the establishment of the Note
program, and from time to time hereafter (as may be agreed by the Bank and the
Agents) in connection with the transactions contemplated hereby.
(i) Each acceptance by the Bank of an offer to purchase Notes,
and each delivery of Notes to the Agents by the Bank pursuant to a Terms
Agreement or otherwise, shall be deemed to be an affirmation that the
representations and warranties of the Bank and the Parent contained in this
Agreement and in any certificate theretofore delivered to the Agents pursuant
hereto are true and correct in all material respects at the time of such
acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct in all material
respects at the time of delivery to the Purchaser or its agent, or to the
Agents, of the Note or Notes made as of each such time (and it is understood
that such representations and warranties shall relate to the Offering Circular
as amended and supplemented to each such time).
(j) Each time the Offering Circular is amended or supplemented
in any material respect or (if required pursuant to the terms of a Terms
Agreement) the Bank sells Notes to an Agent pursuant to a Terms Agreement, the
Bank and the Parent shall furnish or cause to be furnished forthwith to the
Agents a certificate dated the date of such amendment or supplement to the
effect that the statements contained in the certificate furnished by it
pursuant to Sections 5(c) and (d) hereof, respectively, which were last
furnished to the Agents are true and correct in all material respects at the
time of such amendment, supplement or sale, as the case may be, as though made
at such time (except that such statements shall be deemed to relate to the
Offering Circular as amended and supplemented to such time) or, in lieu of such
certificates, certificates of the same form as the certificates referred to in
said Sections 5(c) and (d), modified as necessary to relate
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<PAGE> 11
to the Offering Circular as amended and supplemented to the time of delivery of
such certificates.
(k) Each time the Offering Circular is amended or supplemented
with respect to the Notes (other than by an amendment or supplement (i)
providing solely for a change in the interest rates offered on the Notes or a
change in the principal amount of the Notes remaining to be sold or similar
changes or (ii) solely setting forth or incorporating by reference financial
statements or other information as of and for a fiscal period (unless, in the
judgment of the Agents, such financial statements or other information are of
such a nature that an opinion of counsel should be furnished)) or the Bank
sells Notes to an Agent pursuant to a Terms Agreement (if required pursuant to
the terms of a Terms Agreement), the Bank shall furnish or cause to be
furnished forthwith to the Agents and the Agents' counsel a letter from (x)
counsel last furnishing the opinion referred to in Section 5(a) hereof to the
effect that the Agents may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Offering
Circular as amended and supplemented to the time of delivery of such letter
authorizing reliance) and (y) the independent certified public accountants who
have provided a report incorporated by reference or included in the Offering
Circular consenting to such incorporation by reference or inclusion in the
Offering Circular as amended and supplemented to the time of delivery of such
letter.
(l) The Bank shall qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as any Agent reasonably
requests and shall maintain such qualifications for so long as reasonably
required in connection with the offer and sale of the Notes, provided, however,
that the Bank shall not be required to file a general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
SECTION 5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The
obligations of each Agent to solicit offers to purchase the Notes as agents of
the Bank, the obligation of any purchaser of Notes sold through an Agent as
agent, and the obligation of any Purchaser to purchase Notes pursuant to any
Terms Agreement or otherwise, shall be subject at all times to the accuracy of
the representations and warranties on the part of the Bank and the Parent
herein and to the accuracy of the statements of the Bank's and the Parent's
officers made in any certificate furnished pursuant to the provisions hereof,
to the performance and observance in all material respects by the Bank and the
Parent of all covenants and agreements herein contained and to the following
additional conditions precedent:
(a) The Bank shall have furnished to the Agents the opinion of
Brouse & McDowell, counsel for the Bank and the Parent, dated the date hereof,
in form and substance reasonably satisfactory to such Agents, to the effect
that:
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(i) The Bank is a national banking association duly organized
and validly existing as a banking institution under the laws of
the United States, with requisite power and authority (corporate
and regulatory) to own its properties and conduct its business
as presently conducted, and to execute, deliver and perform its
obligations under the Notes, the Paying Agency Agreement, the
Calculation Agency Agreement, this Agreement and any Terms
Agreement. The Parent has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Ohio. The Parent is duly registered under the Bank
Holding Company Act, and is required to file periodic reports
with the SEC pursuant to the 1934 Act.
(ii) This Agreement has been duly authorized, executed and
delivered by the Bank.
(iii) The Paying Agency Agreement has been (a) duly
authorized, executed and delivered by the Bank and (b)
constitutes a legally valid and binding obligation of the Bank
enforceable against the Bank in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors'
rights generally or the rights of creditors or of the FDIC as
insurer, regulator, conservator or receiver of banks the
accounts of which are insured by the FDIC in particular or by
general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(iv) The Calculation Agency Agreement has been (a) duly
authorized, executed and delivered by the Bank and (b)
constitutes a legally valid and binding obligation of the Bank
enforceable against the Bank in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors'
rights generally or the rights of creditors or of the FDIC as
insurer, regulator, conservator or receiver of banks the
accounts of which are insured by the FDIC in particular or by
general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(v) The Notes have been duly and validly authorized by the
Bank for issuance, offer and sale pursuant to this Agreement
and, when duly completed as contemplated by the Procedures, and
executed, authenticated and delivered pursuant to the provisions
of the Paying Agency Agreement, this Agreement and any
applicable Terms Agreement, against payment of the consideration
therefor, will constitute legally valid and binding obligations
of the Bank enforceable against the Bank in accordance with
their respective terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally or the rights of
creditors, or of the FDIC as insurer, regulator, conservator or
receiver of banks the accounts of which are insured by the FDIC
in particular, or by general equity principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the summary descriptions of the Notes and
the Paying Agency Agreement contained in the Offering Circular
are fair and accurate summaries of such documents.
(vi) The Notes are exempt from registration under the 1933 Act
pursuant to Section 3(a)(2) thereof, and neither registration of
the Notes under the 1933 Act nor qualification of an indenture
under the Trust
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<PAGE> 13
Indenture Act will be required in connection with the offer,
sale, issuance or delivery of the Notes in accordance with the
terms of this Agreement.
(vii) To the best of such counsel's knowledge, the Bank is not
an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment
Company Act.
(viii) The Bank is eligible to use the abbreviated
registration system of the OCC provided for under Section 16.6
of the OCC Offering Rules for the Notes; the requirements of
subparagraphs (a)(1), (a)(2), (a)(3) and (a)(4) of Section 16.6
have been satisfied; and all filings required to be made by the
Bank on or prior to the date hereof pursuant to Section
16.6(a)(6) in connection with the issuance and sale of the Notes
in accordance with the terms of this Agreement have been made.
(ix) No consent, approval or authorization of or filing with
any governmental body or agency is required for the execution,
delivery and performance by the Bank of this Agreement, any
Terms Agreement, the Paying Agency Agreement, the Calculation
Agency Agreement or the Notes, except such as have been made or
obtained or as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale
of the Notes.
(x) The Notes are unsecured and unconditional general
obligations of the Bank and rank PARI PASSU with all other
general unsecured and unsubordinated obligations of the Bank,
subject to the provisions of amended section 11(d)(11) of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1821(d)(11),
as enacted by section 3001 of title III of the Omnibus Budget
Reconciliation Act of 1993 (August 10, 1993).
(xi) To the best of such counsel's knowledge, neither the
Parent nor the Bank is in violation of its charter or by-laws;
the execution, delivery and performance of this Agreement, any
Terms Agreement, the Paying Agency Agreement, the Calculation
Agency Agreement and the Notes and the consummation of the
transactions contemplated herein and therein have been duly
authorized by all necessary corporate action and, to the best of
such counsel's knowledge, will not conflict with, or constitute
a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Parent or the Bank or any of their subsidiaries
pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument which is known to us
to which the Parent or the Bank or any of their subsidiaries is
a party or by which it or any of them may be bound, or to which
any of the property or assets of the Parent or the Bank or any
such subsidiary is subject; such action will not result in any
violation of the provisions of the charter or by-laws of the
Parent or the Bank or, to the best of such
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<PAGE> 14
counsel's knowledge, any applicable law, administrative
regulation or administrative or court order or decree of any
court or governmental body having jurisdiction over the Parent
or the Bank.
(xii) To the best of such counsel's knowledge, except as set
forth in the Offering Circular, there is no action, suit or
proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or threatened, against
the Parent or the Bank or any of their subsidiaries that could
reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, of the Parent or the
Bank and its subsidiaries considered as one enterprise, or that
could reasonably be expected to materially and adversely affect
the properties or assets thereof or that could reasonably be
expected to materially and adversely affect the consummation of
this Agreement or any Terms Agreement.
(xiii) Nothing has come to such counsel's attention that would
lead such counsel to believe that the Offering Circular (other
than the financial statements and other financial and
statistical data included or incorporated by reference therein,
as to which such counsel does not express any opinion) contains
any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading.
Such opinion or opinions shall be limited to the laws of the
State of Ohio and the federal law of the United States of America. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Parent and the Bank and certificates of public officials.
(b) Each Agent shall have received from Brown & Wood, counsel
for the Agents, such opinion or opinions, dated the date hereof, with respect
to the issuance and sale of the Notes, the Distribution Agreement, the Paying
Agency Agreement, the Calculation Agency Agreement, and other related matters
as the Agents may reasonably require, and the Bank shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters. In rendering their opinion, such counsel may
rely on the opinion of Brouse & McDowell referred to above as to any matters
governed by the laws of the State of Ohio covered therein.
(c) At the date hereof and on each Settlement Date, the Agents
shall have received a certificate of the Chairman of the Board or President or
a Vice Chairman, and the chief financial or chief accounting officer or
controller, of the Bank, to the effect that the signers of such certificate
have carefully examined the Offering Circular and the
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<PAGE> 15
documents relating to the transactions contemplated thereby, including this
Agreement, and that:
(1) Since December 31, 1994, there has been no material
adverse change in the condition, financial or otherwise, of the
Bank and its subsidiaries considered as one enterprise, or in
the earnings, business affairs or business prospects of the Bank
and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, other than as
set forth in the Offering Circular, dated April 27, 1995, as
amended or supplemented to the date hereof;
(2) The representations and warranties of the Bank contained
in Section 1 of this Agreement are true and correct with the
same force and effect as though expressly made at and as of the
date of such certificate; and
(3) The Bank has performed or complied with all agreements
and satisfied all conditions set forth or referred to in Section
5 of this Agreement on its part to be performed or satisfied at
or prior to the date of such certificate.
(d) At the date hereof and on each Settlement Date, the Agents
shall have received a certificate from the Chairman of the Board or President
or a Vice Chairman, and the chief financial or chief accounting officer or
controller, of the Parent stating that, as of the date hereof and on such
Settlement Date, the representation and warranties of the Parent contained in
Section 1 of this Agreement are true and correct with the same force and effect
as though expressly made at and as of the date of such certificate and there
has been no material adverse change in the condition (financial or other),
earnings, business or properties of the Parent or the Bank, whether or not
arising from transactions in the ordinary course of business, since the date of
the Offering Circular.
(e) The Agents shall have received a letter, satisfactory to
counsel to the Agents, from the independent certified public accountants who
have provided a report incorporated by reference or included in the Offering
Circular, consenting to such incorporation by reference or inclusion.
(f) Coopers & Lybrand shall have furnished to the Agents a
letter or letters, dated such date, in form and substance satisfactory to the
Agents.
(g) The Notes shall be rated "investment grade" by at least two
"nationally recognized statistical rating organizations" (as defined for
purposes of Rule 43(g) of the 1933 Act).
(h) The Bank and the Parent shall have furnished to the Agents
such further information, certificates and documents as the Agents may
reasonably request.
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If any condition in this Section 5 shall not have been met when
and as required to be met, this Agreement (or, at the option of the applicable
Agent, any applicable Terms Agreement) may be terminated by the Agents by
notice to the Bank at any time at or prior to the Closing Date, and any such
termination shall be without liability of any party to any other party, except
that the provisions of Section 4(h) hereof, the indemnity and contribution
agreement set forth in Section 8 hereof, and the provisions of Section 10
hereof shall remain in full force and effect.
SECTION 6. CONDITIONS TO THE OBLIGATIONS OF A PURCHASER. The
obligations of a Purchaser to purchase any Notes shall be subject to the
accuracy of the representations and warranties on the part of the Bank and the
Parent herein as of the date of the related Terms Agreement and as of the
Closing Date for such Notes, to the performance by the Bank and the Parent of
all its covenants and agreements herein contained and to the following
conditions precedent:
(a) To the extent set forth in a Terms Agreement, the Purchaser
shall have received, appropriately updated, in form and substance reasonably
satisfactory to it and its counsel (i) the opinion of Brouse & McDowell,
counsel for the Bank and the Parent, dated as of the Closing Date, to the
effect set forth in Section 5(a), (ii) a certificate of the Bank, dated as of
the Closing Date, to the effect set forth in Section 5(c) (except that
references to the Offering Circular shall be to the Offering Circular as
supplemented as of the date of such Terms Agreement), (iv) a certificate of the
Parent, appropriately updated to the effect set forth in Section 5(d) (except
that references to the Offering Circular shall be to the Offering Circular as
supplemented as of the date of such Terms Agreement) and (v) letters
appropriately updated to the effect set forth in Sections 5(e) and (f).
(b) Prior to the Closing Date, the Bank and the Parent shall
have furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions in this Section 6 shall not have been
met in all material respects when and as provided in this Agreement and the
applicable Terms Agreement, such Terms Agreement and all obligations of the
Purchaser thereunder and with respect to the Notes subject thereto may be
canceled at, or at any time prior to, the relevant Closing Date by the
Purchaser. Notice of such cancellation shall be given to the Bank in writing
or by telephone or telegraph confirmed in writing.
SECTION 7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO
PURCHASE. (a) The Bank agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any Agent shall have the right
to refuse to purchase such Note, if at the Closing Date therefor, any condition
set forth in Section 5 or 6, as applicable, shall not be satisfied.
16
<PAGE> 17
(b) The Bank agrees that any person who has agreed to purchase
and pay for any Note pursuant to a solicitation by any Agent shall have the
right to refuse to purchase such Note, if subsequent to the agreement to
purchase such Note, any change, condition or development specified in any of
Sections 9(b)(i) through (v) shall have occurred the effect of which is, in the
judgment of such Agent, so material and adverse as to make it impractical or
inadvisable to proceed with the sale and delivery of such Note (it being
understood that under no circumstances shall any such Agent have any duty or
obligation to the Bank or to any such person to exercise the judgment permitted
to be exercised under this Section 7(b) and Section 9(b)).
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. (a) The Bank
and the Parent, jointly and severally, agree to indemnify and hold harmless
each Agent, the directors, officers, employees and agents of each Agent and
each person who controls each Agent within the meaning of either the 1933 Act
or the 1934 Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
1933 Act, the 1934 Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of a material fact contained
in the Offering Circular or in any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any breach or alleged breach by the Bank or
Parent of any agreement or representation made pursuant to this Agreement, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that neither the Bank nor the Parent shall be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Bank by any Agent specifically for inclusion
therein. This indemnity agreement shall be in addition to any liability that
the Bank and the Parent may otherwise have.
(b) Each Agent severally agrees to indemnify and hold harmless
the Bank and the Parent, each of their respective directors and each person who
controls the Bank or the Parent within the meaning of either the 1933 Act or
the 1934 Act, to the same extent as the foregoing indemnity in clause (a)(i) of
this Section 8 from the Bank and Parent to each Agent, but only with reference
to written information relating to such Agent furnished to the Bank by such
Agent specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement shall be in addition to any liability that
any Agent may otherwise have. The Bank and the Parent acknowledge that the
statements set forth in the last paragraph of the cover page and under the
heading "Plan of Distribution" of the Offering Circular constitute the only
information furnished in writing by any of you for inclusion in the documents
referred to in the foregoing indemnity.
17
<PAGE> 18
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
shall not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) shall not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party shall not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Bank, the Parent and the Agents agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Bank, the Parent and one
or more of the Agents may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Bank and the Parent on the one
hand and by the Agents on the other from the offering of the Notes from which
such Losses arise; PROVIDED, HOWEVER, that in no case shall any Agent be
responsible for any
18
<PAGE> 19
amount in excess of the commissions received by such Agent in connection with
the sale of Notes from which such Losses arise (or, in the case of Notes sold
pursuant to a Terms Agreement, the aggregate commissions that would have been
received by such Agent if such commissions had been payable). If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Bank, the Parent and such Agent shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Bank and the Parent on the one hand and of the Agents on the other
in connection with the statements or omission that resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Bank and the Parent shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) of the Notes from which such Losses
arise, and benefits received by the Agents shall be deemed to be equal to the
total commissions received by the Agents in connection with the sale of Notes
from which such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by the
Agents if such commissions had been payable). Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Bank, the Parent or the Agents. The
Bank, the Parent and the Agents agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Agent within the meaning of the 1933 Act or the
1934 Act and each director, officer, employee and agent of an Agent shall have
the same rights to contribution as such Agent, and each person who controls
the Bank or the Parent within the meaning of either the 1933 Act or the 1934
Act and each director of the Bank or the Parent shall have the same rights to
contribution as the Bank and the Parent, subject in each case to the applicable
terms and conditions of this paragraph (d).
SECTION 9. TERMINATION. (a) This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time by either the
Bank or an Agent as to itself upon the giving of written notice of such
termination to the other party. This Agreement shall so terminate at the close
of business on the first business day following the receipt of such notice by
the party to whom such notice is given.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Bank prior to
delivery of any payment for any Note to be purchased thereunder, if prior to
such time (i) there shall have occurred, subsequent to the agreement to
purchase such Note, any change, or any development involving a prospective
change, in or affecting the business or properties of the Bank or the Parent
and its subsidiaries the effect of which is, in the judgment of the Purchaser,
so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of such Note, (ii) there shall have been,
subsequent to the agreement to purchase such Note, any decrease in the rating
of any of the Bank's or the
19
<PAGE> 20
Parent's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act) or
any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change, (iii) trading in the Parent's Common Stock, no par value
per share, shall have been suspended by the SEC or the Nasdaq National Market
or trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or limited or minimum prices shall
have been established on such Exchange or Market, (iv) a banking moratorium
shall have been declared by either Federal or New York or Ohio State
authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Purchaser, impracticable or inadvisable to
proceed with the offering or delivery of such Notes as contemplated by the
Offering Circular (exclusive of any supplement thereto).
SECTION 10. SURVIVAL OF CERTAIN PROVISIONS. All
representations, warranties and agreements contained in this Agreement or any
Terms Agreement, or contained in certificates of officers of the Bank and the
Parent pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Bank, and shall
survive each delivery of and payment for any of the Notes.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing, and shall be deemed to have been duly given if
deposited in the United States mail or with an overnight delivery service or
transmitted by any standard form of telecommunication. Notices to the parties
to this Agreement shall be directed as follows:
If to the Bank:
First National Bank of Ohio
106 South Main Street
Akron, Ohio 44308
Attention: P. Gene Gottfried, Vice President
Telephone Number: (216) 384-8000
Facsimile Number: (216) 384-7133
If to the Parent:
FirstMerit Corporation
III Cascade Plaza, 7th Floor
Akron, Ohio 44308
Attention: Terry E. Patton, General Counsel
Telephone Number: (216) 384-8000
Facsimile Number: (216) 384-7133
20
<PAGE> 21
If to the Agents:
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: Medium-Term Note Department
Telephone Number: (212) 783-7000
Facsimile Number: (212) 783-2274
McDonald & Company Securities, Inc.
McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2603
Attention: Barbara Kaminsky
Telephone Number: (216) 443-2300
Facsimile Number: (216) 443-2947
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Attention: Douglas D. Rubenstein
Telephone Number: (314) 289-3098
Facsimile Number: (314) 289-7387
SECTION 12. SUCCESSORS. This Agreement shall inure to the
benefit of and be binding upon the Agents, the Bank and the Parent and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 8 hereof and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and respective successors and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. APPLICABLE LAW. This Agreement and the rights and
obligations of the parties shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such State.
21
<PAGE> 22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Bank a counterpart hereof, whereupon
this instrument along with all counterparts shall become a binding agreement
between the Agents, the Parent and the Bank in accordance with its terms.
Very truly yours,
FIRST NATIONAL BANK OF OHIO
By: /s/ Terry E. Patton
------------------------------------
Title: Sr. Vice President, Secretary
FIRSTMERIT CORPORATION
By: /s/ Gary J. Elek
------------------------------------
Title: Sr. Vice President, Treasurer
22
<PAGE> 23
Each of the undersigned Agents has accepted and agreed to be
bound by the terms of this Agreement as of the date first set forth above.
SALOMON BROTHERS INC
By: /s/ Pamela Kendall
-------------------------------------
Title: Vice President
MCDONALD & COMPANY SECURITIES, INC.
By: /s/ Charles R. Crowley
-------------------------------------
Title: Senior Vice President
A.G. EDWARDS & SONS, INC.
By: /s/ Stephen J. Roy
-------------------------------------
Title: Vice President
23
<PAGE> 24
SCHEDULE 1
The Bank agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by such Agent:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
<S> <C>
From 0 months to less than 9 months . . . . . . . . . . . . . . . . . . . . . . . Negotiated
From 9 months to less than 1 year . . . . . . . . . . . . . . . . . . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . . . . . . . . . . . . . . . . . .150%
From 18 months to less than 2 years . . . . . . . . . . . . . . . . . . . . . . . .200%
From 2 years to less than 3 years . . . . . . . . . . . . . . . . . . . . . . . . .250%
From 3 years to less than 4 years . . . . . . . . . . . . . . . . . . . . . . . . .350%
From 4 years to less than 5 years . . . . . . . . . . . . . . . . . . . . . . . . .450%
From 5 years to less than 6 years . . . . . . . . . . . . . . . . . . . . . . . . .500%
From 6 years to less than 7 years . . . . . . . . . . . . . . . . . . . . . . . . .550%
From 7 years to less than 10 years . . . . . . . . . . . . . . . . . . . . . . . .600%
From 10 years to less than 15 years . . . . . . . . . . . . . . . . . . . . . . . .625%
From 15 years to less than 20 years . . . . . . . . . . . . . . . . . . . . . . . .700%
From 20 years to less than 30 years . . . . . . . . . . . . . . . . . . . . . . . .750%
From 30 years to less than 40 years . . . . . . . . . . . . . . . . . . . . . . . .875%
From 40 years to less than 50 years . . . . . . . . . . . . . . . . . . . . . . . .950%
From 50 years to less than 100 years . . . . . . . . . . . . . . . . . . . . . . 1.000%
Greater than, or equal to 100 years . . . . . . . . . . . . . . . . . . . . . . . 1.125%
</TABLE>
<PAGE> 25
EXHIBIT A
FIRST NATIONAL BANK OF OHIO
Bank Notes
TERMS AGREEMENT
SALOMON BROTHERS INC
MCDONALD & COMPANY SECURITIES, INC.
A.G. EDWARDS & SONS, INC.
c/o SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Re: Distribution Agreement dated April __, 1995
-------------------------------------------
Ladies and Gentlemen:
The undersigned agrees to sell and you agree to purchase the following
aggregate principal amount of Notes: $____________.
The term of such Notes shall be as follows:
Principal Amount: $________
Interest Rate:
If Fixed Rate Note:
Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
<PAGE> 26
If Redeemable:
Initial Redemption Date:
Additional Redemption Dates:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
If Payable at Holder's Option:
Holder's Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Additional Terms:
Also, as indicated below, the following will be required:
A. Officers' Certificates pursuant to Sections 5(c) and (d) of
the Distribution Agreement: Required [ ]
Not Required [ ]
B. Legal Opinion pursuant to Section 5(a) of the Distribution
Agreement: Required [ ]
Not Required [ ]
C. Stand-Off Agreement required by Section 4(g) of the
Distribution Agreement: Required [ ]
Not Required [ ]
FIRST NATIONAL BANK OF OHIO
By:_____________________________________
Name:
Title:
Accepted:
SALOMON BROTHERS INC
For itself and on behalf of the
several other Agents as Purchasers.
By: _____________________________
Name:
Title:
[107039]
<PAGE> 1
EXHIBIT 10(iii)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR, OR IN LIEU OF, THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., 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.
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY ANY NOMINEE OF THE DEPOSITARY
TO ANOTHER NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY.
THE MINIMUM DENOMINATION OF THIS NOTE IS $250,000. THIS NOTE MAY NOT
BE ISSUED OR EXCHANGED FOR A NOTE OR NOTE(S) IN ANY DENOMINATION LESS THAN
$250,000.
No. FXR-________________ REGISTERED
CUSIP NO.: _____________
FIRST NATIONAL BANK OF OHIO
GLOBAL BANK NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: ____% MATURITY DATE:
INTEREST PAYMENT REGULAR RECORD DATES (FOR
DATES: NOTES WITH MATURITIES
[ ] At Maturity only GREATER THAN ONE YEAR)
[ ] April 15 and October 15 (if other than April 1
[ ] Other: ________________ and October 1 prior to
each Interest Payment Date):
INITIAL REDEMPTION DATE: INITIAL REDEMPTION
PERCENTAGE:
<PAGE> 2
ANNUAL REDEMPTION HOLDER'S OPTIONAL
PERCENTAGE REDUCTION: REPAYMENT DATE(S):
DAY COUNT CONVENTION: ORIGINAL ISSUE DISCOUNT
[ ] 30/360 for the period from NOTE:
_________ to __________ [ ] Yes
[ ] Actual/360 for the period from [ ] No
_________ to __________ Total Amount of OID:
[ ] Actual/Actual for the period Yield to Maturity:
from _________ to __________ Initial Accrual Period:
Issue Price: ___%
DEFAULT RATE: ___% ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER PROVISIONS:
2
<PAGE> 3
First National Bank of Ohio, a national banking association organized
under the laws of the United States (the "Bank"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum
of_____________________________________________________ United States Dollars
on the Maturity Date specified above (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon from and including the
Original Issue Date specified above or from and including the most recent
interest payment date to which interest on this Note (or any predecessor Note)
has been paid or duly provided for, semi-annually on April 15 and October 15 of
each year (unless otherwise specified on the face hereof) (each, an "Interest
Payment Date") and on the Maturity Date or upon earlier redemption or
repayment, if applicable, commencing on the first Interest Payment Date next
succeeding the Original Issue Date (or, if the Original Issue Date is between a
Regular Record Date (as defined below) and the Interest Payment Date
immediately following such Regular Record Date, on the second Interest Payment
Date following the Original Issue Date), at the Interest Rate per annum
specified above, until the principal hereof is paid or made available for
payment, and (to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal, premium, if any, and installment of interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the person in whose name this Note (or any predecessor Note) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the April 1 and October 1 (whether or not a Business
Day (as defined below)), as the case may be, next preceding the applicable
Interest Payment Date (unless otherwise specified on the face hereof) (each, a
"Regular Record Date"); provided, however, that interest payable at the
Maturity Date or upon earlier redemption or repayment, if applicable, will be
payable to the person to whom principal shall be payable. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the holder on such Regular Record Date and may either be paid to the person
in whose name this Note (or any predecessor Note) is registered at the close of
business on a special record date for the payment of such defaulted interest
(the "Special Record Date") to be fixed by the Bank, notice of which shall be
given to the holders of Notes not less than 10 calendar days prior to such
Special Record Date, or be paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on, this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. The
Bank will at all times appoint and maintain a paying agent authorized by the
Bank to pay the principal of, premium, if any, and interest on, this Note on
behalf of the Bank and having an office or agency in The City of New York (the
"Place of Payment"), where this Note may be presented or surrendered for
payment and where notices, designations or requests in respect of payments with
respect to this Note may be served.
THIS NOTE IS A DIRECT, UNCONDITIONAL AND UNSECURED GENERAL OBLIGATION
OF THE BANK, DOES NOT EVIDENCE A DEPOSIT AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER INSURER.
3
<PAGE> 4
Payment of the principal of, premium, if any, and interest on, this
Note due on the Maturity Date or upon earlier redemption or repayment, if
applicable, will be made in immediately available funds upon presentation and
surrender of this Note to the Paying Agent (as defined below) at the Paying
Agent's office in the Place of Payment; provided that this Note is presented to
the Paying Agent in time for the Paying Agent to make such payment in
accordance with its normal procedures. Payments of interest on this Note
(other than on the Maturity Date or upon earlier redemption or repayment) will
be made by wire transfer to such account as has been appropriately designated
to the Paying Agent by the person entitled to such payments.
Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include any Addendum hereto if an Addendum is specified above.
This Note is one of a duly authorized issue of Bank Notes due from 30
days or more from date of issue of the Bank (herein called the "Notes"). The
Notes are issuable under the Issuing and Paying Agency Agreement, dated as of
April 27, 1995 (the "Paying Agency Agreement"), between the Bank and Chemical
Bank, as issuing and paying agent (the "Paying Agent"), which term includes any
successor Paying Agent under the Paying Agency Agreement. Reference is hereby
made to such Paying Agency Agreement and all supplements thereto for a
statement of the respective rights thereunder of the Bank, the Paying Agent and
the holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Paying Agency Agreement may be amended from
time to time in accordance with the terms thereof, but any such amendment will
not affect the rights of the holder hereof. In acting under the Paying Agency
Agreement, the Paying Agent is acting solely as agent of the Bank and does not
assume any obligation or relationship of agency or trust for any of the owners
or holders of Notes, except that any funds held by the Paying Agent for payment
on this Note shall be held in trust as provided in the Paying Agency Agreement.
Payments of interest hereon will include interest accrued to, but
excluding, the relevant Interest Payment Date or Maturity Date or date of
earlier redemption or repayment, as the case may be. Unless otherwise
specified on the face hereof, interest on Notes with maturities of greater than
one year will be computed on the basis of a 360-day year of twelve 30-day
months. Unless otherwise specified on the face hereof, interest on the Notes
with maturities of one year or less will be computed on the basis of the actual
number of days in the year divided by 360 and will be payable only at maturity
or upon earlier redemption or repayment, if applicable, to the person to whom
principal shall be payable. Any provision contained herein with respect to the
calculation of the rate of interest applicable to this Note, its Interest
Payment Dates or any other matter relating hereto may be modified as specified
in an Addendum relating hereto if so specified on the face hereof.
If any Interest Payment Date, Maturity Date or date of earlier
redemption or repayment of this Note falls on a day which is not a Business
Day, the related payment of principal, premium, if any, or interest on, this
Note shall be made on the next succeeding Business Day with the same force and
effect as if made on the date such payments were due, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date,
4
<PAGE> 5
Maturity Date or date of earlier redemption or repayment, as the case may be,
to an including such next succeeding Business Day. "Business Day" means any
day that is not a Saturday or Sunday and that is not a day on which banking
institutions in The City of New York or Akron, Ohio generally are authorized or
obligated by law, regulation or executive order to close.
This Note will not be subject to any sinking fund. If so provided on
the face of this Note, this Note may be redeemed by the Bank on and after the
Initial Redemption Date, if any, specified on the face hereof. If no Initial
Redemption Date is specified on the face hereof, this Note may not be redeemed
prior to the Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time either in whole or in part from time to
time in increments of $1,000 (provided that any remaining principal amount
hereof shall be at least $250,000) at the option of the Bank at the applicable
Redemption Price (as defined below), together with accrued and unpaid interest
hereon at the applicable rate borne by this Note to the date of redemption
(each such date, a "Redemption Date"), on written notice given not more than 60
nor less than 30 calendar days prior to the Redemption Date by the Bank to the
registered holder hereof. Whenever less than all the Notes at any time
outstanding are to be redeemed, the terms of the Notes to be so redeemed shall
be selected by the Bank. If less than all the Notes with identical tenor and
terms at any time outstanding are to be redeemed, the Notes to be so redeemed
shall be selected by the Paying Agent by lot or in any usual manner approved by
it. In the event of redemption of this Note in part only, a new Note for the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage, if any, specified on the face hereof of the principal amount of
this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date specified on the face hereof by the Annual Redemption Percentage
Reduction, if any, specified on the face hereof, of the principal amount to be
redeemed until the Redemption Price is 100% of such principal amount.
This Note may be subject to repayment at the option of the holder
hereof in accordance with the terms hereof on the Holder's Optional Repayment
Date(s), if any, specified on the face hereof. If no Holder's Optional
Repayment Date is specified on the face hereof, this Note will not be so
repayable at the option of the holder hereof prior the Maturity Date. On any
Holder's Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 (provided that any remaining principal amount
hereof will be at least $250,000) at the option of the holder hereof at a
repayment price equal to 100% of the principal amount to be repaid, together
with accrued and unpaid interest hereon payable to the date of repayment. For
this Note to be repaid in whole or in part at the option of the holder hereof
on a Holder's Optional Repayment Date, this Note must be delivered, with the
form entitled "Option to Elect Repayment" below duly completed, to the Paying
Agent at its offices located at 450 West 33rd Street, New York, New York 10001,
Attention: Corporate Trust Group, or at such address of which the Bank shall
from time to time notify the holders of the Notes, not more than 60 nor less
than 30 calendar days prior to such Holder's Optional Repayment Date. In the
event of repayment of this Note in part only, a new Note for the unrepaid
portion hereof shall be issued in the name of the holder hereof upon the
surrender hereof. Exercise of such repayment option by the holder hereof shall
be irrevocable.
5
<PAGE> 6
If this Note is an Original Issue Discount Note, the amount payable to
the holder of this Note in the event of redemption, repayment or acceleration
of maturity will be equal to (i) the Amortized Face Amount (as defined below)
as of the date of such event, plus (ii) with respect to any redemption of an
Original Issue Discount Note, the Initial Redemption Percentage specified on
the face hereof (as adjusted by the Annual Redemption Percentage Reduction, if
any) minus 100% multiplied by the Issue Price specified on the face hereof, net
of any portion of such Issue Price which has been paid prior to the date of
redemption, or the portion of the Issue Price (or the net amount) proportionate
to the portion of the unpaid principal amount to be redeemed, plus (iii) any
accrued interest to the date of such event the payment of which would
constitute qualified stated interest payments within the meaning of Treasury
Regulation 1.1273-1(c) under the Internal Revenue Code of 1986, as amended (the
"Code"). The "Amortized Face Amount" shall mean an amount equal to (i) the
Issue Price hereof plus (ii) the aggregate portions of the original issue
discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" of such Original Issue Discount Note within the
meaning of Section 1273(a)(2) of the Code, whether denominated as principal or
interest, over the Issue Price) which shall theretofore have accrued pursuant
to Section 1272 of the Code (without regard to Section 1272(a)(7) of the Code)
from the date of issue of such Original Issue Discount Note to the date of
determination, minus (iii) any amount considered as part of the "stated
redemption price at maturity" of such Original Issue Discount Note which has
been paid from the date of issue to the date of determination.
In case this Note shall at any time become mutilated, destroyed, lost
or stolen and this Note or evidence satisfactory to the Bank of the loss, theft
or destruction hereof (together with indemnity satisfactory to the Bank and
such other documents or proof as may be required in the premises) shall be
delivered to the Bank, a new Note of like tenor will be issued by the Bank in
exchange for the Note so mutilated, or in lieu of the Note so destroyed or lost
or stolen. All expenses and reasonable charges associated with procuring the
indemnity referred to above and with the preparation, authentication and
delivery of a new Note shall be borne by the holder of the Note so mutilated,
destroyed, lost or stolen. If any Note that has matured or has been redeemed
or repaid or is about to mature or to be redeemed or repaid shall become
mutilated, destroyed, lost or stolen, the Bank may, instead of issuing a
substitute Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) upon compliance by the holder
thereof with the provisions of this paragraph.
No recourse shall be had for the payment of the principal of, premium,
if any, or interest on, this Note, for any claim based hereon, or otherwise in
respect hereof, against FirstMerit Corporation or any shareholder, employee,
agent, officer or director, as such, past, present or future, of the Bank or
FirstMerit Corporation of any successor corporation or any subsidiaries
thereof (other than the Bank), either directly or through the Bank or any
successor corporation, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
6
<PAGE> 7
The occurrence of any of the following events shall constitute an
"Event of Default" with respect to this Note: (i) default in the payment of any
interest with respect to the Notes when due, which continues for 30 calendar
days; (ii) default in the payment of any principal of, or premium, if any, on,
the Notes when due; (iii) the entry by a court or agency or supervisory
authority having jurisdiction in the premises of (a) a decree or order for
relief in respect of the Bank in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or (b) a decree or order appointing a
conservator, receiver, liquidator, assignee, trustee, sequestrator or any other
similar official of the Bank, or of substantially all of the property of the
Bank, or ordering the winding up or liquidation of the affairs of the Bank, and
the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive calendar days;
or (iv) the commencement by the Bank of a voluntary case or proceeding under
any applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated as bankrupt or insolvent, or the consent by the Bank to the entry
of a decree or order for relief in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding, or the filing by the Bank of a petition or
answer or consent seeking reorganization or relief under any applicable United
States federal or state law, or the consent by the Bank to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Bank or of substantially all of the property of the Bank, or the making by
the Bank of an assignment for the benefit of creditors, or the taking of
corporate action by the Bank in furtherance of any such action. If an Event of
Default shall occur and be continuing, the holders of at least 25% in principal
amount of the Notes outstanding may declare the principal amount of, and
accrued interest and premium, if any, on, all of the Notes due and payable
immediately by written notice to the Bank. Upon such declaration and notice,
such principal amount, accrued interest and premium, if any, shall become due
and payable seven calendar days after such notice. Any Event of Default with
respect to this Note may be waived by the holder hereof.
No provision of this Note shall alter or impair the obligation of the
Bank, which is absolute and unconditional, to pay the principal, premium, if
any, and interest on, this Note in United States Dollars at the times, places
and rate herein prescribed.
The Bank shall cause to be kept at the corporate trust office of the
Note Registrar designated below a register (the register maintained in such
office and in any other office or agency of the Bank in the Place of Payment is
herein referred to as the "Note Register") in which, subject to such reasonable
regulations as it may prescribe, the Bank shall provide for the registration of
the Notes and of transfers of the Notes. The Paying Agent is hereby initially
appointed "Note Registrar" for the purpose of registering the Notes and
transfers of the Notes as herein provided.
The transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Bank in the Place of Payment, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Bank
7
<PAGE> 8
and the Paying Agent duly executed by, the holder hereof or such holder's
attorney duly authorized in writing, and thereupon one or more new Notes of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees; provided,
however, that the Paying Agent will not be required to register the transfer or
exchange of any Note which has been called for redemption or any Note which,
together with the form thereon entitled "Option to Elect Repayment" duly
completed, has been received by the Paying Agent, except the unredeemed portion
of a Note being redeemed in part or the unrepaid portion of a Note being repaid
in part.
No service charge shall be made for any such registration of transfer
or exchange, but the Bank may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Notes are issuable only in registered form without coupons in
minimum denominations of $250,000 and any integral multiple of $1,000 in excess
thereof. Each owner of a beneficial interest in this Note is required to hold
a beneficial interest in $250,000 principal amount or any integral multiple of
$1,000 in excess thereof of this Note at all times.
Prior to due presentment of this Note for registration of transfer,
the Bank, the Paying Agent or any agent of the Bank or the Paying Agent may
treat the person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and none of the Bank, the
Paying Agent or any such agent shall be affected by notice to the contrary.
Beneficial interests represented by this Note are exchangeable for
definitive Notes in registered form, of like tenor and of an equal aggregate
principal amount, only if (x) The Depository Trust Company, as Depositary (the
"Depositary"), notifies the Bank that it is unwilling or unable to continue as
Depositary for this Note or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Bank within 60
calendar days, (y) the Bank in its sole discretion determines not to have such
beneficial interests represented by this Note or (z) any event shall have
happened and be continuing which, after notice or lapse of time, or both, would
become an Event of Default with respect to this Note. Any Note representing
such beneficial interests that is exchangeable pursuant to the preceding
sentence shall be exchangeable in whole for definitive Notes in registered
form, of like tenor and of an equal aggregate principal amount, in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
Such definitive Notes shall be registered in the name or names of such person
or persons as the Depositary shall instruct the Note Registrar.
Any moneys paid by the Bank to the Paying Agent for the payment of the
principal of, premium, if any, or interest on, any Notes, and remaining
unclaimed at the end of one year after such principal, premium or interest
shall have become due and payable (whether on the Maturity Date or upon call
for redemption or repayment or otherwise), shall upon demand from the Bank be
repaid to the Bank by the Paying Agent and upon such repayment all liability of
the Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation which the Bank may have to pay the
remaining principal of, premium, if any, or
8
<PAGE> 9
interest on this Note as the same shall become due, subject to escheat and
other state unclaimed property laws.
All notices to the Bank under this Note shall be in writing and
addressed to the Bank at 106 South Main Street, Akron, Ohio 44308, Attention:
P. Gene Gottfried, Vice President, or to such other address of the Bank as the
Bank may notify the holders of the Notes.
This Note shall be governed by, and construed in accordance with, the
laws of the State of Ohio, except where the application of federal law of the
United States of America is required.
Unless the certificate of authentication hereon has been executed by
the Paying Agent under the Paying Agency Agreement referred to herein by the
manual signature of one of its authorized officers, this Note shall not be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Bank has caused this instrument to be duly
executed.
FIRST NATIONAL BANK OF OHIO
By:_____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the Paying Agency Agreement
described herein.
CHEMICAL BANK,
as Paying Agent
By: __________________________________
Authorized Officer
9
<PAGE> 10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - _______________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
______________________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
10
<PAGE> 11
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________
_________________________________________
________________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
______________________________________________the within Note and all rights
thereunder, and hereby irrevocably constitutes and appoints ____________________
________________________________________________________________________________
to transfer said Note on the books of the Bank, with full power of substitution
in the premises.
Dated: _______________________
______________________________
NOTICE: The signature to this
assignment must correspond
with the name as written
upon the face of the within
Note in every particular,
without alteration or
enlargement or any change
whatsoever.
11
<PAGE> 12
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank
to repay this Note (or portion hereof specified below) pursuant to its terms
and at a price equal to 100% of the principal amount hereof to be repaid,
together with accrued and unpaid interest hereon, payable to the date of
repayment, to the undersigned, at_______________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the undersigned must give to the Paying
Agent at its offices located at 450 West 33rd Street, New York, New York 10001,
Attention: Corporate Trust Group, or at such other place or places of which
the Bank shall from time to time notify the holders of the Notes, not more than
60 nor less than 30 calendar days prior to the date of repayment, this Note
with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof)
of the Notes to be issued to the holder for the portion of this Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
$_____________________ ______________________________
NOTICE: The signature on this
"Option to Elect Repayment"
Dated:_______________________ form must correspond with the
name as written upon the face
of the within Note in every
particular, without alteration
or enlargement or any change
whatsoever.
[107044]
12
<PAGE> 1
EXHIBIT 10(iv)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR, OR IN LIEU OF, THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., 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.
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY ANY NOMINEE OF THE DEPOSITARY
TO ANOTHER NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY.
THE MINIMUM DENOMINATION OF THIS NOTE IS $250,000. THIS NOTE MAY NOT
BE ISSUED OR EXCHANGED FOR A NOTE OR NOTE(S) IN ANY DENOMINATION LESS THAN
$250,000.
No. FLR-_____ REGISTERED
CUSIP NO.: _____
FIRST NATIONAL BANK OF OHIO
GLOBAL BANK NOTE
(Floating Rate)
<TABLE>
<S> <C>
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT: $
INITIAL INTEREST RATE: _______% MATURITY DATE:
INTEREST RATE BASIS: REGULAR RECORD
DATES (if other than the
15th day prior to each Interest
IF LIBOR: Payment Date):
[ ] Libor Telerate
[ ] Libor Reuters
INTEREST PAYMENT DATE(S):
<PAGE> 2
IF CMT RATE: INDEX CURRENCY:
Designated CMT Telerate Page:
Designated CMT Maturity Index:
INDEX MATURITY: INTEREST RESET PERIOD:
SPREAD (PLUS OR MINUS): SPREAD MULTIPLIER:
DAY COUNT CONVENTION:
[ ] 30/360 for the period
from _____ to _____.
MAXIMUM INTEREST RATE: [ ] Actual/360 for the period
from _____ to _____.
MINIMUM INTEREST RATE: [ ] Actual/Actual for the
INTEREST RESET DATES: period from _____ to _____.
INITIAL REDEMPTION DATE: CALCULATION AGENT:
INITIAL REDEMPTION DEFAULT RATE: _____%
PERCENTAGE:
ORIGINAL ISSUE DISCOUNT NOTE:
ANNUAL REDEMPTION PERCENTAGE [ ] YES
REDUCTION: [ ] NO
Total Amount of OID:
Yield to Maturity:
HOLDER'S OPTIONAL REPAYMENT Initial Accrual Period:
DATE(S): Issue Price: %
OTHER PROVISIONS: ADDENDUM ATTACHED:
[ ] YES
[ ] NO
</TABLE>
2
<PAGE> 3
First National Bank of Ohio, a national banking association organized
under the laws of the United States (the "Bank"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
________________________________________________________________________________
__________________________________________ United States Dollars on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the Maturity Date) and to pay interest thereon from and including the Original
Issue Date specified above or from and including the most recent interest
payment date (or, if the Interest Reset Period specified above is daily or
weekly, from, and including, the day following the most recent Regular Record
Date) to which interest on this Note (or any predecessor Note) has been paid or
duly provided for (each, an "Interest Payment Date"), on the Interest Payment
Dates specified above and on the Maturity Date or upon earlier redemption or
repayment, if applicable, commencing on the first Interest Payment Date next
succeeding the Original Issue Date (or, if the Original Issue Date is between a
Regular Record Date (as defined below) and the Interest Payment Date
immediately following such Regular Record Date, on the second Interest Payment
Date following the Original Issue Date), at a rate per annum equal to the
Initial Interest Rate specified above until the first Interest Reset Date
following the Original Issue Date and, on and after such Interest Reset Date,
at the rate determined in accordance with the provisions set forth herein or in
any Addendum relating hereto, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the Default Rate per annum specified above on
any overdue principal, premium, if any, and installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will be paid to the person in whose name this Note (or any
predecessor Note) is registered at the close of business on the Regular Record
Date for such interest, which shall be the 15th calendar day (whether or not a
Business Day) before such Interest Payment Date (unless otherwise specified on
the face hereof) (each, a "Regular Record Date"); provided, however, that
interest payable on the Maturity Date or upon earlier redemption or repayment,
if applicable, will be payable to the person to whom principal shall be
payable. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the holder on such Regular Record Date and may
either be paid to the person in whose name this Note (or any predecessor Note)
is registered at the close of business on a special record date for the payment
of such defaulted interest (the "Special Record Date") to be fixed by the
Bank, notice of which shall be given to the holders of Notes not less than 10
calendar days prior to such Special Record Date, or be paid at any time in any
other lawful manner.
Payment of principal of, premium, if any, and interest on, this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. The
Bank will at all times appoint and maintain a paying agent authorized by the
Bank to pay the principal of, premium, if any, and interest on, this Note on
behalf of the Bank and having an office or agency in The City of New York (the
"Place of Payment"), where this Note may be presented or surrendered for
payment and where notices, designations or requests in respect of payments with
respect to this Note may be served.
THIS NOTE IS A DIRECT, UNCONDITIONAL AND UNSECURED GENERAL OBLIGATION
OF THE BANK, DOES NOT EVIDENCE A DEPOSIT AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER INSURER.
3
<PAGE> 4
Payment of the principal of, premium, if any, and interest on, this
Note due on the Maturity Date or upon earlier redemption or repayment, if
applicable, will be made in immediately available funds upon presentation and
surrender of this Note to the Paying Agent (as defined below) at the Paying
Agent's office in the Place of Payment; provided that this Note is presented to
the Paying Agent in time for the Paying Agent to make such payment in
accordance with its normal procedures. Payments of interest on this Note
(other than on the Maturity Date or upon earlier redemption or repayment) will
be made by wire transfer to such account as has been appropriately designated
to the Paying Agent by the person entitled to such payments.
Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include any Addendum hereto if an Addendum is specified above.
This Note is one of a duly authorized issue of Bank Notes due from 30
days or more from date of issue of the Bank (herein called the "Notes"). The
Notes are issuable under the Issuing and Paying Agency Agreement, dated as of
April 27, 1995 (the "Paying Agency Agreement"), between the Bank and Chemical
Bank, as issuing and paying agent (the "Paying Agent"), which term includes any
successor Paying Agent under the Paying Agency Agreement. Reference is hereby
made to such Paying Agency Agreement and all supplements thereto for a
statement of the respective rights thereunder of the Bank, the Paying Agent and
the holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Paying Agency Agreement may be amended from
time to time in accordance with the terms thereof, but any such amendment will
not affect the rights of the holder hereof. In acting under the Paying Agency
Agreement, the Paying Agent is acting solely as agent of the Bank and does not
assume any obligation or relationship of agency or trust for any of the owners
or holders of Notes, except that any funds held by the Paying Agent for payment
on this Note shall be held in trust as provided in the Paying Agency Agreement.
If any Interest Payment Date (other than an Interest Payment Date at
the Maturity Date or date of earlier redemption or repayment of this Note)
would otherwise be a day that is not a Business Day, such Interest Payment Date
will be the next succeeding Business Day, except that, in the case that the
Interest Rate Basis specified on the face hereof is LIBOR, if such Business Day
is in the next succeeding calendar month, such Interest Payment Date will be
the immediately preceding Business Day. Except as provided above, interest
payments will be made on the Interest Payment Dates specified on the face
hereof. If the Maturity Date or date of earlier redemption or repayment of
this Note would otherwise be a day that is not a Business Day, the related
payment of principal, premium, if any, and interest on, this Note shall be made
on the next succeeding Business Day with the same force and effect as if made
on the date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Maturity Date or date of earlier
redemption or repayment, as the case may be, to and including such next
succeeding Business Day. "Business Day" means any day that is not a Saturday
or Sunday and that is not a day on which banking institutions in The City of
New York or Akron, Ohio generally are authorized or obligated by law,
regulation or executive order to close, and with respect to Notes with respect
to this Note if the Interest Rate Basis specified on the face hereof is LIBOR,
any day on which dealings in deposits in United States dollars are transacted
in the London interbank market (a "London Business Day").
4
<PAGE> 5
This Note will not be subject to any sinking fund. If so provided on
the face of this Note, this Note may be redeemed by the Bank on and after the
Initial Redemption Date, if any, specified on the face hereof. If no Initial
Redemption Date is specified on the face hereof, this Note may not be redeemed
prior to the Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time either in whole or in part from time to
time in increments of $1,000 (provided that any remaining principal amount
hereof shall be at least $250,000) at the option of the Bank at the applicable
Redemption Price (as defined below), together with accrued and unpaid interest
hereon at the applicable rate borne by this Note to the date of redemption
(each such date, a "Redemption Date"), on written notice given not more than 60
nor less than 30 calendar days prior to the Redemption Date by the Bank to the
registered holder hereof. Whenever less than all the Notes at any time
outstanding are to be redeemed, the terms of the Notes to be so redeemed shall
be selected by the Bank. If less than all the Notes with identical tenor and
terms at any time outstanding are to be redeemed, the Notes to be so redeemed
shall be selected by the Paying Agent by lot or in any usual manner approved by
it. In the event of redemption of this Note in part only, a new Note for the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this Note to
be redeemed and shall decline at each anniversary of the Initial Redemption
Date specified on the face hereof by the Annual Redemption Percentage
Reduction, if any, specified on the face hereof, of the principal amount to be
redeemed until the Redemption Price is 100% of such principal amount.
This Note may be subject to repayment at the option of the holder
hereof in accordance with the terms hereof on the Holder's Optional Repayment
Date(s), if any, specified on the face hereof. If no Holder's Optional
Repayment Date is specified on the face hereof, this Note will not be so
repayable at the option of the holder hereof prior the Maturity Date. On any
Holder's Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 (provided that any remaining principal amount
hereof will be at least $250,000) at the option of the holder hereof at a
repayment price equal to 100% of the principal amount to be repaid, together
with accrued and unpaid interest hereon payable to the date of repayment. For
this Note to be repaid in whole or in part at the option of the holder hereof
on a Holder's Optional Repayment Date, this Note must be delivered, with the
form entitled "Option to Elect Repayment" below duly completed, to the Paying
Agent at its offices located at 450 West 33rd Street, New York, New York 10001,
Attention: Corporate Trust Group, or at such address of which the Bank shall
from time to time notify the holders of the Notes, not more than 60 nor less
than 30 calendar days prior to such Holder's Optional Repayment Date. In the
event of repayment of this Note in part only, a new Note for the unrepaid
portion hereof shall be issued in the name of the holder hereof upon the
surrender hereof. Exercise of such repayment option by the holder hereof shall
be irrevocable.
If this Note is an Original Issue Discount Note, the amount payable to
the holder of this Note in the event of redemption, repayment or acceleration
of maturity will be equal to (i) the Amortized Face Amount (as defined below)
as of the date of such event, plus (ii) with respect to any redemption of an
Original Issue Discount Note, the Initial Redemption Percentage specified on
the face hereof (as adjusted by the Annual Redemption Percentage Reduction, if
any)
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<PAGE> 6
minus 100% multiplied by the Issue Price specified on the face hereof, net of
any portion of such Issue Price which has been paid prior to the date of
redemption, or the portion of the Issue Price (or the net amount) proportionate
to the portion of the unpaid principal amount to be redeemed, plus (iii) any
accrued interest to the date of such event the payment of which would
constitute qualified stated interest payments within the meaning of Treasury
Regulation 1.1273-1(c) under the Internal Revenue Code of 1986, as amended (the
"Code"). The "Amortized Face Amount" shall mean an amount equal to (i) the
Issue Price hereof plus (ii) the aggregate portions of the original issue
discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" of such Original Issue Discount Note within the
meaning of Section 1273(a)(2) of the Code, whether denominated as principal or
interest, over the Issue Price) which shall theretofore have accrued pursuant
to Section 1272 of the Code (without regard to Section 1272(a)(7) of the Code)
from the date of issue of such Original Issue Discount Note to the date of
determination, minus (iii) any amount considered as part of the "stated
redemption price at maturity" of such Original Issue Discount Note which has
been paid from the date of issue to the date of determination.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (each such period, an "Interest
Reset Period" for this Note, and the first calendar day of an Interest Reset
Period, an "Interest Reset Date"), as specified on the face hereof; provided,
however, that the interest rate in effect from the Original Issue Date to the
first Interest Reset Date will be the Initial Interest Rate specified on the
face hereof. If any Interest Reset Date with respect to this Note would
otherwise be a day that is not a Business Day, such Interest Reset Date will be
the next succeeding Business Day, except that in the event that the Interest
Rate Basis specified on the face hereof is LIBOR, if such Business Day is in
the next succeeding calendar month, such Interest Reset Date will be the
immediately preceding Business Day.
Except as otherwise provided herein, the rate of interest on this Note
for each Interest Reset Date shall be the rate determined in accordance with
the provisions set forth under the applicable heading below corresponding to
the Interest Rate Basis specified on the face hereof:
COMMERCIAL PAPER RATE. If the Interest Rate Basis of this Note is the
Commercial Paper Rate, the interest rate hereon for any Interest Reset Date
shall equal the Commercial Paper Rate (as determined below), as adjusted (x) by
the addition or subtraction of the Spread, if any, specified on the face hereof
and/or (y) by the multiplication by the Spread Multiplier, if any, specified on
the face hereof. "Commercial Paper Rate" means the Money Market Yield
(calculated as described below) of the rate (quoted on a discount basis) on the
relevant Commercial Paper Interest Determination Date (as defined below) for
commercial paper having the Index Maturity specified on the face hereof as such
rate is published by the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") in the weekly statistical release entitled
"Statistical Release H.15(519), Selected Interest Rates" or any successor
publication published by the Federal Reserve Board ("H.15(519)") under the
heading "Commercial Paper". If such rate is not published prior to 3:00 P.M.,
New York City time, on the Calculation Date (as defined below) pertaining to
such Commercial Paper Interest Determination Date, then the Commercial Paper
Rate will be the Money Market Yield (calculated as described below) of the rate
(quoted on a discount basis) on such Commercial Paper Interest Determination
Date for commercial paper
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<PAGE> 7
having the Index Maturity specified on the face hereof as such rate is
published by the Federal Reserve Bank of New York in its daily statistical
release entitled "Composite 3:30 P.M. Quotation for U.S. Government Securities"
or any successor publication published by the Federal Reserve Bank of New York
("Composite Quotations") under the heading "Commercial Paper". If such rate is
not yet published in either H.15(519) or in Composite Quotations by 3:00 P.M.,
New York City time, on such Calculation Date, the Commercial Paper Rate for
such Commercial Paper Interest Determination Date will be calculated by the
Calculation Agent and will be the Money Market Yield of the arithmetic mean of
the offered rates as of 11:00 A.M., New York City time, on such Commercial
Paper Interest Determination Date, of three leading dealers of commercial
paper in The City of New York selected by the Calculation Agent for commercial
paper having the Index Maturity specified on the face hereof placed for an
industrial issuer whose senior unsecured bond rating is "AA", or the
equivalent, from a nationally recognized statistical rating organization;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Commercial Paper Rate
determined on such Commercial Paper Interest Determination Date will be the
rate determined on the immediately preceding Commercial Paper Interest
Determination Date or, in the case of the first Commercial Paper Interest
Determination Date, the Initial Interest Rate specified on the face hereof.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
LIBOR. If the Interest Rate Basis of this Note is LIBOR, the interest
rate hereon for any Interest Reset Date shall equal LIBOR (as determined
below), as adjusted (x) by the addition or subtraction of the Spread, if any,
specified on the face hereof and/or (y) by the multiplication by the Spread
Multiplier, if any, specified on the face hereof. LIBOR shall be determined by
the Calculation Agent in accordance with the following provisions:
(a) With respect to any LIBOR Interest Determination Date
(as defined below), LIBOR will be, as specified on the face hereof,
either: (i) the rate of deposits in United States dollars having the
Index Maturity specified on the face hereof, commencing on the second
London Business Day immediately following that LIBOR Interest
Determination Date, that appears on the Telerate Page 3750, as of
11:00 A.M., London time, on that LIBOR Interest Determination Date
("LIBOR Telerate"), or (ii) the arithmetic mean of the offered rates
for deposits in United States dollars having the Index Maturity
specified on the face hereof, commencing on the second London Business
Day immediately after that LIBOR Interest Determination Date, that
appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time,
on that LIBOR Interest Determination Date, if at least two such
offered rates appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"). "Telerate Page 3750" means the display designated as page
"3750" on the Telerate Service (or such other page
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<PAGE> 8
as may replace the 3750 page on that service or such other services as
may be nominated by the British Bankers' Association for the purpose
of displaying London interbank offered rates for United States dollar
deposits). "Reuters Screen LIBO Page" means the display designated as
page "LIBO" on the Reuters Monitor Money Rates Service (or such other
page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks). If neither
LIBOR Telerate nor LIBOR Reuters is specified on the face hereof,
LIBOR will be determined as if LIBOR Telerate had been specified. If
no rate appears on the Telerate Page 3750, or if fewer than two
offered rates appear on the Reuters Screen LIBO Page, as
applicable, LIBOR in respect of that LIBOR Interest Determination Date
will be determined as if the parties had specified the rate described
in (b) below.
(b) With respect to a LIBOR Interest Determination Date on
which no rate appears on Telerate Page 3750, as specified in (a)(i)
above, or on which fewer than two offered rates appear on the Reuters
Screen LIBO Page, as specified in (a)(ii) above, as applicable, LIBOR
will be determined on the basis of the rates at which deposits in
United States dollars having the Index Maturity specified on the
face hereof are offered at approximately 11:00 A.M., London time, on
that LIBOR Interest Determination Date by four major banks in the
London interbank market selected by the Calculation Agent ("Reference
Banks") to prime banks in the London interbank market, commencing on
the second London Business Day immediately following that LIBOR
Interest Determination Date and in a principal amount of not less than
$1,000,000 that is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal
London office of each of the Reference Banks to provide a quotation of
its rate. If at least two such quotations are provided, LIBOR in
respect of that LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of that LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00
A.M., New York City time, on that LIBOR Interest Determination Date by
three major banks in The City of New York selected by the Calculation
Agent for loans in United States dollars to leading European banks
having the Index Maturity specified on the face hereof commencing on
the second London Business Day following that LIBOR Interest
Determination Date and in a principal amount of not less than
$1,000,000 that is representative for a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR with respect to such LIBOR Interest Determination
Date will be LIBOR determined on the immediately preceding LIBOR
Interest Determination Date or, in the case of the first LIBOR
Interest Determination Date, the Initial Interest Rate specified on
the face hereof.
TREASURY RATE. If the Interest Rate Basis of this Note is the
Treasury Rate, the interest rate hereon for any Interest Reset Date shall equal
the Treasury Rate (as determined below) as adjusted (x) by the addition or
subtraction of the Spread, if any, specified on the face hereof and/or (y) by
the multiplication by the Spread Multiplier, if any, specified on the face
hereof. "Treasury Rate" means the rate for the most recent auction of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof, as such rate is published in H.15(519) under the
heading "Treasury Bills-auction average (investment)" or, if no
8
<PAGE> 9
such rate is published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Treasury Interest Determination Date (as defined
below), the auction average rate (expressed as a bond equivalent, on the basis
of a year of 365 or 366 days, as applicable, and applied on a daily basis) for
such auction as otherwise announced by the United States Department of the
Treasury. If the results of the auction of Treasury bills having the Index
Maturity specified on the face hereof are neither published in H.15(519) nor
otherwise published or reported as provided above by 3:00 P.M., New York City
time, on such Calculation Date, or if no such auction is held in a particular
week, then the Treasury Rate will be the rate published in H.15(519) under the
heading "U.S. Government Securities/Treasury Bills/Secondary Market" (expressed
as a bond equivalent yield on the basis of a 365 or 366 day year, as
applicable, on a daily basis), or if not so published by 3:00 P.M. New York
City time on the related Calculation Date, the Treasury Rate will be calculated
by the Calculation Agent and will be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates as of 3:30 P.M., New York City time, on such Treasury Interest
Determination Date, of three leading primary United States government
securities dealers in The City of New York selected by the Calculation Agent,
for the issue of Treasury bills with a remaining maturity closest to the Index
Maturity specified on the face hereof or, if there are two such issues that are
equidistant from the Index Maturity specified on the face hereof, then the
longer of the two; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate for such Treasury Interest Determination Date will be the
Treasury Rate determined on the immediately preceding Treasury Interest
Determination Date or, in the case of the first Treasury Interest Determination
Date, the Initial Interest Rate specified on the face hereof.
CD RATE. If the Interest Rate Basis of this Note is the CD Rate, the
interest rate hereon for any Interest Reset Date shall equal the CD Rate (as
determined below), as adjusted (x) by the addition or subtraction of the
Spread, if any, specified on the face hereof and/or (y) by the multiplication
by the Spread Multiplier, if any, specified on the face hereof. "CD Rate"
means the rate on the relevant CD Interest Determination Date for negotiable
certificates of deposit having the Index Maturity specified on the face hereof,
as published in H.15(519) under the heading "Cds (Secondary Market)". If such
rate is not so published before 3:00 P.M. New York City time, on the
Calculation Date pertaining to such CD Interest Determination Date, then the CD
Rate will be the rate on such CD Interest Determination Date for negotiable
certificates of deposit having the Index Maturity specified on the face hereof
as published in Composite Quotations under the heading "Certificates of
Deposit". If such rate is not yet published in either H.15(519) or in
Composite Quotations by 3:00 P.M., New York City time, on such Calculation
Date, the CD Rate will be calculated by the Calculation Agent and will be the
arithmetic mean of the secondary market offered rates as of 10:00 A.M., New
York City time, on such CD Interest Determination Date, of three leading
non-bank dealers of negotiable United States dollar certificates of deposit in
The City of New York selected by the Calculation Agent for negotiable United
States dollar certificates of deposit of major United States money market banks
for negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is representative
for a single transaction in that market at that time; provided, however, that,
if the dealers selected as aforesaid by the Calculation Agent are not quoting
as mentioned in this sentence, the CD Rate determined on such CD Interest
Determination Date will be the CD Rate determined on the immediately preceding
CD Interest
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<PAGE> 10
Determination Date or, in the case of the first CD Interest Determination Date,
the Initial Interest Rate specified on the face hereof.
FEDERAL FUNDS RATE. If the Interest Rate Basis of this Note is the
Federal Funds Rate, the interest rate hereon for any Interest Reset Date shall
equal the Federal Funds Rate (as determined below), as adjusted (x) by the
addition or subtraction of the Spread, if any, specified on the face hereof
and/or (y) by the multiplication by the Spread Multiplier, if any, specified on
the face hereof. "Federal Funds Rate" means the rate on the relevant Federal
Funds Interest Determination Date (as defined below) for Federal Funds having
the Index Maturity specified on the face hereof, as published in H.15(519)
under the heading "Federal Funds (Effective)". If such rate is not so
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Interest Determination Date, then the Federal Funds Rate
will be the rate on such Federal Funds Interest Determination Date as published
in Composite Quotations under the heading "Federal Funds/Effective Rate". If
such rate is not yet published in either H.15(519) or in Composite Quotations
by 3:00 P.M., New York City time, on such Calculation Date, the Federal Funds
Rate will be calculated by the Calculation Agent and will be the arithmetic
mean of the rates for the last transaction in overnight Federal Funds arranged
prior to 9:00 A.M., New York City time, on such Federal Funds Rate Interest
Determination Date by three leading brokers of Federal Funds transactions in
The City of New York selected by the Calculation Agent; provided, however, that
if the brokers selected as aforesaid by the Calculation Agent are not quoting
as mentioned in this sentence, the Federal Funds Rate for such Federal Funds
Interest Determination Date will be the Federal Funds Rate determined on the
immediately preceding Federal Funds Interest Determination Date or, in the case
of the first Federal Funds Interest Determination Date, the Initial Interest
Rate specified on the face hereof.
PRIME RATE. If the Interest Rate Basis of this Note is the Prime
Rate, the interest rate hereon for any Interest Reset Date shall equal the
Prime Rate (as determined below), as adjusted (x) by the addition or
subtraction of the Spread, if any, specified on the face hereof and/or (y) by
the multiplication by the Spread Multiplier, if any, specified on the face
hereof. "Prime Rate" means the rate set forth on the relevant Prime Interest
Determination Date (as defined below) in H.15(519) under the heading "Bank
Prime Loan". If such rate is not published prior to 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Prime Interest Determination
Date, then the Prime Rate will be determined by the Calculation Agent and will
be the arithmetic mean of the rates of interest publicly announced by each bank
that appear on the Reuters Screen NYMF Page (as defined below) as such bank's
prime rate or base lending rate as in effect for such Prime Interest
Determination Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen NYMF Page on such Prime Interest Determination
Date, the Prime Rate will be determined by the Calculation Agent and will be
the arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by a 360-day year as of the close of business on
such Prime Interest Determination Date by three, or two, if only two such rates
are quoted, major money center banks in The City of New York selected by the
Calculation Agent. If fewer than two such rates appear on the Reuters Screen
NYMF Page, the Prime Rate will be determined by the Calculation Agent on the
basis of the rates furnished in The City of New York by the appropriate number
of substitute banks or trust companies organized and doing business under the
laws of the United States, or any State thereof, having total equity capital of
at least $500,000,000 and being subject to supervision or examination by
federal or state
10
<PAGE> 11
authority, selected by the Calculation Agent to provide such rate or rates;
provided, however, that if the banks or trust companies selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Prime Rate for such Prime Interest Determination Date will be the Prime Rate
determined on the immediately preceding Prime Interest Determination Date or,
in the case of the first Prime Interest Determination Date, the Initial
Interest Rate specified on the face hereof. "Reuters Screen NYMF Page" means
the display designated as page "NYMF" on the Reuter Monitor Money Rates Service
(or such other page as may replace the NYMF page on that service for the
purpose of displaying prime rates or base lending rates of major United States
banks).
11TH DISTRICT COST OF FUNDS RATE NOTES. If the Interest Rate Basis of
this Note is the 11th District Cost of Funds Rate, the interest rate hereon for
any Interest Reset Date shall equal the 11th District Cost of Funds Rate (as
determined below), as adjusted (x) by the addition or subtraction of the
Spread, if any, specified on the face hereof and/or (y) by the multiplication
by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise specified on the face hereof, "11th District Cost of
Funds Rate" means, with respect to any 11th District Cost of Funds Interest
Determination Date (as defined below), the rate equal to the monthly weighted
average cost of funds for the calendar month immediately preceding the month in
which such 11th District Cost of Funds Rate Interest Determination Date falls,
as set forth under the caption "11th District" on Telerate Page 7058 as of
11:00 A.M., San Francisco time, on such 11th District Cost of Funds Rate
Interest Determination Date. If such rate does not appear on Telerate Page
7058 on any related 11th District Cost of Funds Rate Interest Determination
Date, the 11th District Cost of Funds Rate for such 11th District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions in the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the Federal Home
Loan Bank of San Francisco as such cost of funds for the calendar month
immediately preceding such 11th District Cost of Funds Interest Determination
Date. If the Federal Home Loan Bank of San Francisco fails to announce such
rate on such 11th District Cost of Funds Interest Determination Date for the
calendar month immediately preceding such 11th District Cost of Funds Rate
Interest Determination Date, then the 11th District Cost of Funds Rate for such
11th District Cost of Funds Rate Interest Determination Date will be the 11th
District Cost of Funds Rate determined on the immediately preceding 11th
District Cost of Funds Rate Interest Determination Date or, in the case of the
first 11th District Cost of Funds Rate Interest Determination Date, the Initial
Interest Rate specified on the face hereof.
CMT RATE NOTES. If the Interest Rate Basis of this Note is the CMT
Rate, the interest rate hereon for any Interest Reset Date shall equal the CMT
Rate (as determined below), as adjusted (x) by the addition or subtraction of
the Spread, if any, specified on the face hereof, and/or (y) by the
multiplication by the Spread Multiplier, if any, specified on the face hereof.
Unless otherwise indicated on the face hereof, "CMT Rate" means with
respect to any CMT Interest Determination Date (as defined below), the rate
displayed on the Designated CMT Telerate Page (as defined below) under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT
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<PAGE> 12
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week, or the month, as applicable, ended immediately preceding the
week in which the related CMT Interest Determination Date occurs. If such rate
is no longer displayed on the relevant page, or if not displayed by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CMT Rate for such
CMT Interest Determination Date will be such Treasury Constant Maturity rate
for the Designated CMT Maturity Index as published in the relevant H.15(519).
If such rate is no longer published, or if not published by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate for such CMT
Interest Determination Date will be such Treasury Constant Maturity rate for
the Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United States
Department of the Treasury that the Calculation Agent determines to be
comparable to the rate formerly displayed on the Designated CMT Telerate Page
and published in the relevant H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for the CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30
P.M., New York City time, on the CMT Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of New
York selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation (or,
in the event of equality, one of the highest) and the lowest quotation (or, in
the event of equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes") with
an original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent cannot obtain three such Treasury Note
quotations, the CMT Rate for such CMT Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time on the CMT Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)) for Treasury Notes
with an original maturity of the number of years that is the next highest to
the Designated CMT Maturity Index and a remaining term to maturity closest to
the Designated CMT Maturity Index and in an amount of at least $100 million.
If three or four (and not five) of such Reference Dealers are quoting as
described above, then the CMT Rate will be based on the arithmetic mean of all
the offer prices obtained and neither the highest nor lowest of such quotes
will be eliminated; provided, however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as described herein, the
CMT Rate for such CMT Interest Determination Date will be the CMT Rate
determined on the immediately preceding CMT Interest Determination Date or, in
the case of the first CMT Interest Determination Date, the Initial Interest
Rate specified on the face hereof. If two Treasury Notes, with an original
maturity as described in the third preceding sentence, have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the quotes for the
Treasury Note with the shorter remaining term to maturity will be used.
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<PAGE> 13
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated on the face hereof (or any other page
as may replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519), for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the Treasury Notes (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified on
the face hereof with respect to which the CMT Rate will be calculated. If no
such maturity is specified, the Designated CMT Maturity Index shall be 2 years.
J.J. KENNY RATE. If the Interest Rate Basis of this Note is the J.J.
Kenny Rate, the interest rate hereon for any Interest Reset Date shall equal
the J.J. Kenny Rate (as determined below), as adjusted (x) by the addition or
subtraction of the Spread, if any, specified on the face hereof and/or (y) by
the multiplication by the Spread Multiplier, if any, specified on the face
hereof.
Unless otherwise indicated on the face hereof, "J.J. Kenny Rate"
means, with respect to any J.J. Kenny Interest Determination Date (as defined
below), the rate in the high grade weekly index (the "Weekly Index") on such
date made available by Kenny Information Systems ("Kenny") to the Calculation
Agent. The Weekly Index shall be based upon 30-day yield evaluations at par of
bonds, the interest of which is exempt from federal income taxation under the
Code, of not less than five high grade component issuers selected by Kenny
which shall include, without limitation, issuers of general obligation bonds.
The specific issuers included among the component issuers may be changed from
time to time by Kenny at its discretion. The bonds on which the Weekly Index
is based shall not include any bonds on which the interest is subject to a
minimum tax or similar tax under the Code, unless all tax-exempt bonds are
subject to such tax. In the event Kenny ceases to make available such Weekly
Index, a successor indexing agent will be selected by the Calculation Agent,
such index to reflect the prevailing rate for bonds rated in the highest
short-term rating category by Moody's Investors Service, Inc. and Standard &
Poor's Group in respect of issuers most closely resembling the high grade
component issuers selected by Kenny for its Weekly Index, the interest on which
is (A) variable on a weekly basis, (B) exempt from federal income taxation
under the Code, as amended, and (C) not subject to a minimum tax or similar tax
under the Code unless all tax-exempt bonds are subject to such tax. If such
successor indexing agent is not available, the rate for any J.J. Kenny Interest
Determination Date shall be 67% of the rate determined if the Treasury Rate
option had been originally selected. The Calculation Agent shall calculate the
J.J. Kenny Rate in accordance with the foregoing.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate nor less than the Minimum Interest Rate,
if any, specified on the face hereof.
The Bank will at all times appoint and maintain a banking institution
as Calculation Agent hereunder. Unless otherwise specified on the face hereof,
the Bank has initially appointed Chemical Bank as Calculation Agent. Upon the
request of the holder of this Note, the Calculation Agent will provide the
interest rate then in effect, and, if different, the interest rate
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<PAGE> 14
that will become effective as a result of a determination made on the most
recent Interest Determination Date with respect to this Note.
Unless otherwise specified on the face hereof, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor (expressed as a decimal rounded, if necessary, as
described below) for each such date shall be computed by dividing the interest
rate (expressed as a decimal rounded, if necessary, as described below)
applicable to such day by 360, if the Interest Rate Basis specified on the face
hereof is the Commercial Paper Rate, Prime Rate, CD Rate, Federal Funds Rate,
LIBOR, J.J. Kenny Rate or 11th District Cost of Funds Rate, by the actual
number of days in the year (365 or 366, as the case may be) if the Interest
Rate Basis specified on the face hereof is the Treasury Rate or the CMT Rate.
Unless otherwise specified on the face hereof, all percentages
resulting from any calculation on this Note will be rounded, if necessary, to
the nearest one-hundred thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards (e.g. 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)
being rounded to 9.87654% (or .0987654)), and all dollar amounts used in or
resulting from such calculation in respect of this Note will be rounded to the
nearest cent (with one-half cent being rounded upwards). The interest rate in
effect on any Interest Reset Date will be the applicable rate as reset on such
Interest Reset Date. The interest rate applicable to any other day is the
interest rate from the immediately preceding Interest Reset Date (or, if none,
the Initial Interest Rate). The Calculation Agent's determination of any
interest rate will be final and binding in the absence of any manifest error.
Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date if the rate of interest
hereon shall be determined in accordance with the provisions under the headings
above entitled "Commercial Paper Rate" (the "Commercial Paper Interest
Determination Date"), "CD Rate" (the "CD Interest Determination Date"),
"Federal Funds Rate" (the "Federal Funds Interest Determination Date"), "Prime
Rate" (the "Prime Interest Determination Date"), "CMT Rate" (the "CMT Interest
Determination Date") and "J.J. Kenny Rate" (the "J.J. Kenny Interest
Determination Date") will be the second Business Day preceding such Interest
Reset Date; the Interest Determination Date pertaining to an Interest Reset
Date in the rate of interest hereon shall be determined in accordance with the
provisions under the heading above entitled "11th District Cost of Funds Rate"
(the "11th District Cost of Funds Interest Determination Date") will be the
last working day of the month immediately preceding such Interest Reset Date on
which the Federal Home Loan Bank of San Francisco publishes the Index. The
Interest Determination Date pertaining to an Interest Reset Date if the rate of
interest hereon shall be determined in accordance with the provisions under the
heading above entitled "LIBOR" (the "LIBOR Interest Determination Date") will
be the second London Business Day preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date if the rate of
interest hereon shall be determined in accordance with the provisions under the
heading above entitled "Treasury Rate" (the "Treasury Interest Determination
Date") will be that day of the week in which such Interest Reset Date falls on
which Treasury bills would normally be auctioned. Treasury bills are normally
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is usually
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<PAGE> 15
held on the following Tuesday, except that such auction may be held on the
preceding Friday. If, as the result of a legal holiday, an auction is so held
on the preceding Friday, such Friday will be the Treasury Interest
Determination Date pertaining to the Interest Reset Date occurring in the next
succeeding week. If an auction date shall fall on any Interest Reset Date for
a Note with respect to which the Interest Rate Basis specified on the face
hereof is the Treasury Rate, then such Interest Reset Date shall instead be the
first Business Day immediately following such auction date.
Unless otherwise specified on the face hereof, the Calculation Date
pertaining to the Interest Determination Date for any Note shall be the earlier
of (i) the tenth calendar day after such Interest Determination Date or, if any
such day is not a Business Day, the next succeeding Business Day and (ii) the
Business Day immediately preceding the applicable Interest Payment Date or the
Maturity Date or date of earlier redemption or repayment, as the case may be.
Payments of interest hereon with respect to any Interest Payment Date
will include interest accrued from, and including, the Original Issue Date or
from, and including, the last date on which interest has been paid, to, but
excluding, such Interest Payment Date, except that the interest payable on the
Maturity Date or upon earlier redemption or repayment will include interest
accrued to, but excluding, the Maturity Date or the date of earlier redemption
or repayment, as the case may be.
In case this Note shall at any time become mutilated, destroyed, lost
or stolen and this Note or evidence satisfactory to the Bank of the loss, theft
or destruction hereof (together with indemnity satisfactory to the Bank and
such other documents or proof as may be required in the premises) shall be
delivered to the Bank, a new Note of like tenor will be issued by the Bank in
exchange for the Note so mutilated, or in lieu of the Note so destroyed or lost
or stolen. All expenses and reasonable charges associated with procuring the
indemnity referred to above and with the preparation, authentication and
delivery of a new Note shall be borne by the holder of the Note so mutilated,
destroyed, lost or stolen. If any Note that has matured or has been redeemed
or repaid or is about to mature or to be redeemed or repaid shall become
mutilated, destroyed, lost or stolen, the Bank may, instead of issuing a
substitute Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) upon compliance by the holder
thereof with the provisions of this paragraph.
No recourse shall be had for the payment of the principal of, premium,
if any, or interest on, this Note, for any claim based hereon, or otherwise in
respect hereof, against FirstMerit Corporation or any shareholder, employee,
agent, officer or director, as such, past, present or future, of the Bank or
FirstMerit Corporation of any successor corporation or any subsidiaries
thereof (other than the Bank), either directly or through the Bank or any
successor corporation, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an
"Event of Default" with respect to this Note: (i) default in the payment of any
interest with respect to the Notes when due, which continues for 30 calendar
days; (ii) default in the payment of any principal of, or premium,
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<PAGE> 16
if any, on, the Notes when due; (iii) the entry by a court or agency or
supervisory authority having jurisdiction in the premises of (a) a decree or
order for relief in respect of the Bank in an involuntary case or proceeding
under any applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or (b) a decree or order appointing a
conservator, receiver, liquidator, assignee, trustee, sequestrator or any other
similar official of the Bank, or of substantially all of the property of the
Bank, or ordering the winding up or liquidation of the affairs of the Bank, and
the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive calendar days;
or (iv) the commencement by the Bank of a voluntary case or proceeding under
any applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated as bankrupt or insolvent, or the consent by the Bank to the entry
of a decree or order for relief in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding, or the filing by the Bank of a petition or
answer or consent seeking reorganization or relief under any applicable United
States federal or state law, or the consent by the Bank to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Bank or of substantially all of the property of the Bank, or the making by
the Bank of an assignment for the benefit of creditors, or the taking of
corporate action by the Bank in furtherance of any such action. If an Event of
Default shall occur and be continuing, the holders of at least 25% in principal
amount of the Notes outstanding may declare the principal amount of, premium,
if any, and accrued interest on, all of the Notes due and payable immediately
by written notice to the Bank. Upon such declaration and notice, such
principal amount, accrued interest and premium, if any, shall become due and
payable seven calendar days after such notice. Any Event of Default with
respect to this Note may be waived by the holder hereof.
No provision of this Note shall alter or impair the obligation of the
Bank, which is absolute and unconditional, to pay the principal, premium, if
any, and interest on, this Note in United States Dollars at the times, places
and rate herein prescribed.
The Bank shall cause to be kept at the corporate trust office of the
Note Registrar designated below a register (the register maintained in such
office and in any other office or agency of the Bank in the Place of Payment is
herein referred to as the "Note Register") in which, subject to such reasonable
regulations as it may prescribe, the Bank shall provide for the registration of
the Notes and of transfers of the Notes. The Paying Agent is hereby initially
appointed "Note Registrar" for the purpose of registering the Notes and
transfers of the Notes as herein provided.
The transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Bank in the Place of Payment, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Bank and the Paying Agent
duly executed by, the holder hereof or such holder's attorney duly authorized
in writing, and thereupon one or more new Notes of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees; provided, however, that the Paying
Agent will not be required to register
16
<PAGE> 17
the transfer or exchange of any Note which has been called for redemption or
any Note which, together with the form thereon entitled "Option to Elect
Repayment" duly completed, has been received by the Paying Agent, except the
unredeemed portion of a Note being redeemed in part or the unrepaid portion of
a Note being repaid in part.
No service charge shall be made for any such registration of transfer
or exchange, but the Bank may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Notes are issuable only in registered form without coupons in
minimum denominations of $250,000 and any integral multiple of $1,000 in excess
thereof. Each owner of a beneficial interest in this Note is required to hold
a beneficial interest in $250,000 principal amount or any integral multiple of
$1,000 in excess thereof of this Note at all times.
Prior to due presentment of this Note for registration of transfer,
the Bank, the Paying Agent or any agent of the Bank or the Paying Agent may
treat the person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and none of the Bank, the
Paying Agent or any such agent shall be affected by notice to the contrary.
Beneficial interests represented by this Note are exchangeable for
definitive Notes in registered form, of like tenor and of an equal aggregate
principal amount, only if (x) The Depository Trust Company, as Depositary (the
"Depositary"), notifies the Bank that it is unwilling or unable to continue as
Depositary for this Note or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Bank within 60
calendar days, (y) the Bank in its sole discretion determines not to have such
beneficial interests represented by this Note or (z) any event shall have
happened and be continuing which, after notice or lapse of time, or both, would
become an Event of Default with respect to this Note. Any Note representing
such beneficial interests that is exchangeable pursuant to the preceding
sentence shall be exchangeable in whole for definitive Notes in registered
form, of like tenor and of an equal aggregate principal amount, in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
Such definitive Notes shall be registered in the name or names of such person
or persons as the Depositary shall instruct the Note Registrar.
Any moneys paid by the Bank to the Paying Agent for the payment of the
principal of, premium, if any, or interest on, any Notes, and remaining
unclaimed at the end of one year after such principal, premium or interest
shall have become due and payable (whether on the Maturity Date or upon call
for redemption or repayment or otherwise), shall upon demand from the Bank be
repaid to the Bank by the Paying Agent and upon such repayment all liability of
the Paying Agent with respect to such moneys shall thereupon cease, without,
however, limiting in any way any obligation which the Bank may have to pay the
remaining principal of, premium, if any, or interest on this Note as the same
shall become due, subject to escheat and other state unclaimed property laws.
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<PAGE> 18
All notices to the Bank under this Note shall be in writing and
addressed to the Bank at 106 South Main Street, Akron, Ohio 44308, Attention:
P. Gene Gottfried, Vice President, or to such other address of the Bank as the
Bank may notify the holders of the Notes.
This Note shall be governed by, and construed in accordance with, the
laws of the State of Ohio, except where the application of federal law of the
United States of America is required.
Unless the certificate of authentication hereon has been executed by
the Paying Agent under the Paying Agency Agreement referred to herein by the
manual signature of one of its authorized officers, this Note shall not be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Bank has caused this instrument to be duly
executed.
FIRST NATIONAL BANK OF OHIO
By:_____________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the Paying Agency Agreement
described herein.
CHEMICAL BANK,
as Paying Agent
By: __________________________
Authorized Officer
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<PAGE> 19
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ______________ Custodian _______________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_______________________________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
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<PAGE> 20
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
___________________________
___________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
________________________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
to transfer said Note on the books of the Bank, with full power of substitution
in the premises.
Dated: ________________________
______________________________
NOTICE: The signature to this
assignment must correspond
with the name as written upon
the face of the within Note in
every particular, without
alteration or enlargement or
any change whatsoever.
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<PAGE> 21
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank
to repay this Note (or portion hereof specified below) pursuant to its terms
and at a price equal to 100% of the principal amount hereof to be repaid,
together with accrued and unpaid interest hereon, payable to the date of
repayment, to the undersigned, at ______________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the undersigned must give to the Paying
Agent at its offices located at 450 West 33rd Street, New York, New York 10001,
Attention: Corporate Trust Group, or at such other place or places of which
the Bank shall from time to time notify the holders of the Notes, not more than
60 nor less than 30 calendar days prior to the date of repayment, this Note
with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof)
of the Notes to be issued to the holder for the portion of this Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
$_____________________ ______________________________
NOTICE: The signature on
this "Option to Elect
Dated:________________________ Repayment" form must
correspond with the name as
written upon the face of the
within Note in every
particular, without
alteration or enlargement or
any change whatsoever.
[107046]
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