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Form 8-A\A
Securities and Exchange Commission
Washington, D.C. 20549
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AMENDMENT NO. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SOCIETY CORPORATION
(upon consummation of the pending merger between the Registrant
and KeyCorp, a New York corporation, the Registrant will be
the surviving corporation of the merger as an Ohio Corporation,
but will be renamed "KeyCorp")
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Ohio 34-6542451
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
</TABLE>
<TABLE>
<S> <C>
127 Public Square, Cleveland, Ohio 44114
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(Address of principal executive offices) (Zip Code)
</TABLE>
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Common Shares, with a par value of $1 each,
and Rights to Purchase Common Shares
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(Title of each class to be registered)
New York Stock Exchange
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(Name of each exchange
on which each class is
to be registered)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered.
The Registrant's authorized capital stock consists of
900,000,000 Common Shares, with a par value of $1 each (the "Common Shares"),
25,000,000 shares of Preferred Stock, with a par value of $1 each (the "Serial
Preferred Stock"), and 1,400,000 shares of 10% Cumulative Preferred Stock,
Class A, par value $5.00 per share (the "Class A Preferred Stock"). Each share
of Class A Preferred Stock is deposited under a Deposit Agreement, dated July
27, 1991 (the "Deposit Agreement"), between the Registrant, Society National
Bank, as successor depositary (the "Depositary"), and the holders of Depositary
Receipts issued by the Depositary thereunder. Each Depositary Receipt
evidences one Depositary Share representing a one-fifth interest in a share of
Class A Preferred Stock (a "Depositary Share"). The material terms of the
Common Shares and the Rights to Purchase Common Shares are described below.
The description of the terms of the Common Shares and
the Rights to Purchase Common Shares set forth below is incomplete and is
qualified in its entirety by reference to the Registrant's Amended and Restated
Articles of Incorporation and Regulations and the Rights Agreement (defined
below) and other documents filed as exhibits hereto, which are hereby
incorporated herein by reference.
A. Common Shares
General
The Common Shares have no preemptive rights or
sinking fund provisions and are not redeemable or convertible into other
securities. All presently outstanding Common Shares have been fully paid and
are non-assessable. Upon full payment of Common Shares hereafter issued in an
amount in excess of the par value thereof, holders of the Common Shares, as
such holders, will not be liable for further calls or to assessment by the
Registrant or for the liabilities of the Registrant.
Voting Rights
The holders of Common Shares are entitled to one vote
for each Common Share held of record on each matter properly submitted to
shareholders for their vote, consent, waiver, release or other action. Holders
of Common Shares are not entitled to the right of cumulative voting.
Under the Registrant's Amended and Restated Articles
of Incorporation ("Articles of Incorporation"),
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any proposal which, under applicable law, requires the approval of the
shareholders of the Registrant:
(1) to adopt an amendment to the Articles of
Incorporation,
(2) to sell, exchange, transfer, or otherwise
dispose of all, or substantially all, the assets of the Registrant,
(3) to effect a merger or consolidation involving
the Registrant,
(4) to effect a combination or majority share
acquisition (as such terms are defined by the laws of the State of
Ohio),
(5) to dissolve, liquidate or wind up the affairs of
the Registrant,
may be authorized and approved by the affirmative vote of the holders of shares
entitling them to exercise a majority of the voting power of the Registrant,
and by the affirmative vote of the majority of any class if a class vote is
required (except as otherwise provided with respect to the Class A Preferred
Stock or the Serial Preferred Stock). The Registrant's Articles of
Incorporation do not reduce the vote of shareholders required to approve a
transaction which requires shareholder approval under the Ohio Interested
Shareholder Transaction Law.
The Regulations of the Registrant provide that
through December 31, 1998, the provisions of the Regulations relating to (a)
the number, classification, and term of office of directors, (b) Chairman of
the Board, Chairman of the Executive Committee, and Chairmen of other
committees, (c) nominations and removal of directors and filling vacancies in
the Board of Directors, (d) the Nominating Committee, (e) Chief Executive
Officer and President through December 31, 1998, (f) removal of officers, (g)
the headquarters of the Registrant, and (h) the amendment of the Regulations
may only be amended, repealed, or altered (i) by the affirmative vote of the
holders of shares entitling them to exercise three-quarters of the voting power
of the Registrant on such proposal, (ii) if such amendment, repeal, or
alteration is recommended by three-quarters of the entire authorized Board of
Directors of the Registrant, by the affirmative vote of the holders of shares
entitling them to exercise a majority of the voting power of the Registrant on
such proposal, or (iii) without a meeting, by the written consent of the
holders of shares entitling them to exercise 100% of the voting power of the
Registrant on such proposal. The Regulations also provide that until December
31, 1998, any Regulations, other than those
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Regulations specifically listed in the immediately preceding sentence, and,
after December 31, 1998, any Regulations, may be adopted, amended, repealed, or
altered (x) by the affirmative vote of the holders of shares entitling them to
exercise three-quarters of the voting power of the Registrant on such
proposal, (y) if such adoption, amendment, repeal, or alteration is recommended
by two-thirds of the entire authorized Board of Directors of the Registrant, by
the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the Registrant on such proposal, or (z) without
a meeting, by the written consent of the holders of shares entitling them to
exercise 100% of the voting power of the Registrant on such proposal.
The Regulations of the Registrant provide that the
number of directors shall be between 20 and 24, divided into three classes.
The Board of Directors may change the size of the Board of Directors within the
foregoing range by the affirmative vote of two-thirds of the entire authorized
Board. The shareholders may fix or change the size of the Board of Directors
within the foregoing range at a meeting of the shareholders of the Registrant
called for the purpose of electing directors (i) by the affirmative vote of the
holders of shares entitling them to exercise three-quarters of the voting power
of the Registrant represented at the meeting and entitled to elect directors or
(ii) if the proposed change in the number of directors is recommended by
two-thirds of the entire authorized Board of Directors, by the affirmative vote
of the holders of shares entitling them to exercise a majority of the voting
power of the Registrant represented at the meeting and entitled to elect
directors. In addition, the number of directors is subject to automatic
increase by two during certain periods when dividends payable on any class or
series of preferred stock of the Registrant are in arrears for six quarterly
dividend payment periods, as set forth in the Articles of Incorporation and/or
the express terms of any outstanding preferred stock of the Registrant.
Through December 31, 1996, any increase or decrease in the size of the Board
must be by two or a multiple of two and, through December 31, 1998, no more
than two directors may be "Insider Directors" (which is defined to mean any
person who, as of immediately prior to the merger of KeyCorp and Society
Corporation, was a current or former officer of the Registrant or any of its
subsidiaries or any predecessor or constituent (by merger, consolidation or
otherwise) of the Registrant or any of its subsidiaries, but shall not include
H. Douglas Barclay or Harry S. Hemingway).
Removal of Directors and Filling Vacancies
The Regulations of the Registrant provide that the
Board of Directors may remove any director and
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thereby create a vacancy on the Board: (a) if by order of court he has been
found to be of unsound mind or if he is adjudicated a bankrupt or (b) if within
60 days from the date of his election he does not qualify by accepting in
writing his election to such office or by acting at a meeting of directors.
All the directors, or all of the directors of a
particular class, or any individual director, may be removed from office,
without assigning any cause, by the affirmative vote of the holders of shares
entitling them to exercise three-quarters of the voting power of the
Registrant entitled to elect directors in place of those to be removed. In
case of any such removal, a new director nominated in accordance with the
Regulations of the Registrant may be elected at the same meeting for the
unexpired term of each director removed. Failure to elect a director to fill
the unexpired term of any director removed is deemed to create a vacancy on the
Board.
The Regulations of the Registrant provide that any
vacancies on the Board of Directors resulting from death, resignation, removal,
or other cause may only be filled by the affirmative vote of two-thirds of the
remaining directors then in office, even though less than a quorum of the Board
of Directors, or by a sole remaining director. Newly created directorships
resulting from any increase in the number of directors by action of the Board
of Directors shall be filled by the affirmative vote of two-thirds of the
directors then in office, or if not so filled, by the shareholders at the next
annual meeting thereof or at a special meeting called for that purpose in
accordance with the Regulations. In the event that the shareholders increase
the authorized number of directors in accordance with the Regulations but fail
at the meeting at which such increase is authorized, or an adjournment of that
meeting, to elect the additional directors provided for, or if the shareholders
fail at any meeting to elect the whole authorized number of directors, such
vacancies may be filled by the affirmative vote of two-thirds of the directors
then in office. Any director elected in accordance with the three preceding
sentences shall hold office for the remainder of the full term of the class of
directors in which the new directorship was created or the vacancy occurred and
until such director's successor shall have been elected and qualified.
Notwithstanding the foregoing, through December 31, 1998, the Board of
Directors may fill vacancies (however caused) only after complying with the
applicable procedures specified in the Regulations governing nominations of
directors.
Dividend and Liquidation Rights
Subject to any dividend and liquidation preferences
applicable to any shares of Class A Preferred
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Stock or any other preferred stock outstanding at the time and to applicable
restrictions imposed by law or regulation, holders of Common Shares are
entitled to dividends when and as declared by the Registrant's Board of
Directors from funds legally available therefor and, in the event of
liquidation, are entitled to share ratably in all assets remaining after
payment of the Registrant's liabilities.
Opt-Out of Control Share Acquisition Law
The Registrant's Articles of Incorporation expressly
provide that Section 1701.831 of the Ohio Revised Code (commonly referred to as
the Ohio control share acquisition law) shall not apply to control share
acquisitions of shares of the Registrant.
B. Serial Preferred Stock
The Registrant does not presently have any shares of
Serial Preferred Stock issued and outstanding. The Registrant may issue Serial
Preferred Stock from time to time in one or more series.
C. Rights to Purchase Common Shares
On August 17, 1989, the Board of Directors of the
Registrant declared a dividend consisting of Rights (the "Rights") to purchase
Common Shares. One of the Rights was distributed with respect to each Common
Share outstanding on September 12, 1989 (the "Record Date"). Rights have been
and will continue to be issued in respect of all Common Shares that are (1)
issued after the Record Date but before the earlier of the expiration or
redemption of the Rights or the occurrence of a Triggering Event (as defined
below), (2) issued after the Record Date but before the expiration or
redemption of the Rights in exchange for Common Stock, par value $1.00 per
share, of TrustCorp, Inc., a Delaware corporation, upon consummation of the
merger of TrustCorp, Inc. into the Registrant, (3) issued after the Record Date
but before the expiration or redemption of the Rights in exchange for Common
Stock, par value $1.66 2/3 per share, of Ameritrust Corporation, a Delaware
corporation ("Ameritrust"), upon consummation of the merger of Ameritrust into
the Registrant, (4) issued after the Record Date but before the expiration or
redemption of the Rights in exchange for Common Shares, par value $5.00 per
share, of KeyCorp, a New York corporation ("Old KeyCorp"), upon consummation of
a merger of Old KeyCorp into and with the Registrant, which will be the
surviving corporation with the name "KeyCorp", pursuant to an Agreement and
Plan of Merger and a related Supplemental Agreement to Agreement and Plan of
Merger, each as amended dated as of October 1, 1993 (together the "KeyCorp
Merger Agreement"), between the Registrant and Old KeyCorp, or (5)
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issued after the Record Date but before the expiration or redemption of the
Rights upon the exercise of any employee stock option granted prior to a
Triggering Event.
The description and terms of the Rights are set forth
in a Rights Agreement, dated August 25, 1989 (the "Rights Agreement"), between
the Registrant and First Chicago Trust Company of New York, as rights agent
("First Chicago"), as amended by a First Amendment to Rights Agreement, dated
as of February 21, 1991 (the "First Amendment to Rights Agreement"), between
the Registrant and First Chicago, a Second Amendment to Rights Agreement, dated
as of September 12, 1991 (the "Second Amendment to Rights Agreement"), between
the Registrant and First Chicago, and a Third Amendment to Rights Agreement,
dated as of October 1, 1993 (the "Third Amendment to Rights Agreement") between
Society and the Rights Agent (as defined below). The Third Amendment to Rights
Agreement was entered into in connection with the KeyCorp Merger Agreement.
Effective as of July 1, 1992, First Chicago was replaced as rights agent by
Society National Bank (the "Rights Agent").
Each of the Rights initially represents the right to
purchase one Common Share of the Registrant for $65 (the "Purchase Price").
The Rights will become exercisable 20 days after the earlier of (1) a public
announcement that a person or group has become an Acquiring Person (as defined
below) or (2) the commencement of a tender offer or exchange offer that would
result in a person or group becoming an Acquiring Person.
An "Acquiring Person" means a person or group
(excluding the Registrant, any subsidiary of the Registrant, or any employee
benefit plan or employee stock ownership plan of the Registrant or any of its
subsidiaries) that beneficially owns more than 15% of the Common Shares
outstanding, except that (1) a person will not be deemed to be an Acquiring
Person if the person becomes the beneficial owner of more than 15% of the
Common Shares as a result of a reduction in the number of Common Shares
outstanding unless, after the reduction, the person acquires additional Common
Shares, and (2) a person will not be deemed to be an Acquiring Person if the
person becomes the beneficial owner of more than 15% of the Common Shares
inadvertently and, as soon as practicable after learning about such beneficial
ownership, divests enough Common Shares so that the person ceases to be the
beneficial owner of more than 15% of the Common Shares.
Until the Rights become exercisable, they will trade
with the Common Shares, and any transfer of Common Shares will also constitute
a transfer of the associated Rights. When the Rights become exercisable, they
will begin to trade separate and apart from the Common
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Shares. At that time, separate certificates representing the Rights will be
mailed to holders.
Twenty days after certain events occur ("Flip-in
Events"), each of the Rights will become the right to purchase one Common Share
of the Registrant for the then par value per share (now $1.00 per share), and
the Rights beneficially owned by the Acquiring Person and its affiliates will
become void. The Flip-in Events are (1) the beneficial ownership by a person
or group of 15% or more of the outstanding Common Shares, unless the Common
Shares are acquired in a tender or exchange offer for all of the Common Shares
at a price and on other terms approved in advance by the Registrant's Board of
Directors (and provided further that the exceptions to the definition of
"Acquiring Person" set forth above also apply to this Flip-in Event), (2)
certain self-dealing transactions between the Registrant and an Acquiring
Person, and (3) a reclassification or recapitalization of the Registrant that
has the effect of increasing by more than 1% the percentage of Common Shares
beneficially owned by an Acquiring Person.
If, after a person or group becomes an Acquiring
Person, the Registrant is acquired in a merger or other business combination or
50% or more of its assets or earning power is sold, each of the Rights will
"flip-over" and become the right to purchase common shares of the acquiror (a
"Flip-over Event"). The holder (other than the Acquiring Person) of each Right
would, upon the occurrence of a Flip-over Event, be entitled to purchase for
the then par value of a Common Share (now $1.00) the number of common shares of
the acquiror having a market price equal to the market price of the Common
Shares.
The Purchase Price and/or the number of Common Shares
of the Registrant (or common shares of an acquiror) to be purchased upon
exercise of the Rights are subject to adjustment from time to time to prevent
dilution in the event the Registrant (l) declares a dividend on the Common
Shares payable in Common Shares, (2) subdivides or combines the outstanding
Common Shares, (3) issues any shares other than Common Shares in a
reclassification of the Common Shares, or (4) makes a distribution to all
holders of Common Shares of debt securities, subscription rights, warrants, or
other assets (except regular cash dividends). With certain exceptions, no
adjustment will be required until a cumulative adjustment of at least 1% is
required. The Registrant is not required to issue fractional interests in
Common Shares and, instead, may make a cash payment based on the market price
of the Common Shares.
The Registrant's Board of Directors may redeem the
Rights for $.005 each (the "Redemption Price") at any time before a "Triggering
Event" (which is defined
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as the occurrence of a Flip-over Event or the 20th day after a Flip-in Event).
However, the Rights may not be redeemed while there is an Acquiring Person
unless (1) Continuing Directors, as defined below, constitute a majority of the
Board of Directors and (2) a majority of the Continuing Directors approves the
redemption. "Continuing Directors" are defined as directors who were in office
prior to a person or group becoming an Acquiring Person or whose election to
office was recommended by a majority of the Continuing Directors and who are
not affiliated with the Acquiring Person. The Rights will expire on September
12, 1999, unless they are redeemed before that date.
Until the Rights are exercised, the holders of the
Rights, as such, will have no rights as shareholders of the Registrant,
including the right to vote or receive dividends.
The provisions of the Rights Agreement may be amended
by the Registrant's Board of Directors to cure any ambiguity or correct any
defect or inconsistency or, prior to a Triggering Event, to make other changes
that the Board of Directors deems to be desirable and not adverse to the
interests of the Registrant and its shareholders.
Taking into effect the consummation of the merger of
Old KeyCorp with and into Society, as of January 31, 1994, 220,496,147 Common
Shares were outstanding and an additional 1,264,804 Common Shares were held in
the Registrant's treasury, and 12,943,197 Common Shares have been reserved for
issuance upon exercise of options granted pursuant to any of the Registrant's
stock option plans.
Because of the dilution that could be suffered by an
Acquiring Person if Rights were exercised, the Rights could have the effect of
discouraging a tender offer or exchange offer for Common Shares or the
accumulation of a substantial number of Common Shares, unless the Board of
Directors redeems the Rights. However, the Rights are not intended to prevent
a takeover of the Registrant that is in the best interests of the Registrant,
its shareholders and other constituencies.
The foregoing description of the Rights does not
purport to be complete and is qualified in its entirety by reference to the
Rights Agreement, the First Amendment to Rights Agreement, the Second Amendment
to Rights Agreement, and the Third Amendment to Rights Agreement, which are
incorporated by reference as Exhibits 2, 3, 4, and 7, respectively.
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Item 2. Exhibits
The Registrant's Common Shares, Depositary Shares, and Rights to Purchase
Common Shares are listed on the New York Stock Exchange, on which no other
securities of the Registrant currently are listed. Accordingly, the following
exhibits required in accordance with Part I of the Instructions as to Exhibits
are filed herewith and incorporated herein by reference:
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
1 Form of Certificate evidencing ownership of Common Shares
2 Rights Agreement, dated as of August 25, 1989, between Society Corporation and First
Chicago Trust Company of New York, as Rights Agent, including as Exhibit A thereto, the
form of Right Certificate*
3 First Amendment to Rights Agreement, dated as of February 21, 1991, between Society
Corporation and First Chicago Trust Company of New York, as Rights Agent*
4 Second Amendment to Rights Agreement, dated as of September 12, 1991, between Society
Corporation and First Chicago Trust Company of New York, as Rights Agent*
5 Third Amendment to Rights Agreement, dated as of October 1, 1993, between Society
Corporation and Society National Bank, as Rights Agent**
6 Regulations of the Registrant
7 Amended and Restated Articles of Incorporation of the Registrant
<FN>
* Filed with the Commission as exhibits with the same
exhibit number to Society's Registration Statement on
Form 8-A filed on July 31, 1992, and incorporated herein
by reference.
</TABLE>
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** Filed with the Commission as Exhibit No. 4 to Society's
Schedule 13D filed on October 12, 1993, and incorporated
herein by reference.
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
SOCIETY CORPORATION
By: /s/ Lawrence J. Carlini
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Lawrence J. Carlini
Title: General Counsel and Secretary
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Date: February 23, 1994
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Form of Certificate
evidencing ownership of Common Shares
[FRONT]
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<S> <C> <C>
Common Shares KeyCorp Common Shares
INCORPORATED UNDER THE LAWS OF THE STATE OF OHIO
THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR CERTAIN
IN CLEVELAND, OHIO OR IN NEW YORK, NEW YORK DEFINITIONS
</TABLE>
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON ASSESSABLE COMMON SHARES,
WITH A PAR VALUE OF $1 EACH, of KeyCorp transferable on the books of the
Corporation by the holder hereof, in person or by an attorney, upon surrender
of this certificate duly endorsed. This certificate is not valid until
countersigned and registered by the Transfer Agent and Registrar. Witness the
facsimile seal of the Corporation and the facsimile signatures of its duly
authorized officers.
Dated
<TABLE>
<S> <C> <C>
/s/ Lawrence J. Carlini [KeyCorp Seal] /s/ Victor J. Riley, Jr.
Secretary Chairman of the Board and
Chief Executive Officer
</TABLE>
[BACK]
DEFINITIONS
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____ Custodian ______
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
JT TEN - as joint tenants with rights of Act_____________
survivorship and not as tenants (State)
in common
</TABLE>
Additional abbreviations may also be used though not in the above list.
EXPRESS TERMS OF SHARES
The Corporation will mail to the record holder of this certificate
without charge within five days after receipt of written request therefor,
addressed to the Secretary of the Corporation at its principal executive
offices located at 127 Public Square, Cleveland, Ohio 44114, a copy of the
express terms of the shares represented by this certificate and of other
classes and series of shares which the Corporation is authorized to issue.
For value received, _____________ hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________of the Shares
represented by the certificate and does hereby irrevocably constitute and
appoint ___________ Attorney to transfer the said shares on the books of
the within named Corporation, with full power of substitution in the premises.
Dated__________________________ 19___
_________________________________________________________
NOTICE: The signature on this assignment must correspond
with the name as written upon the face of the certificate
in every particular without alteration or enlargement,
or any change whatever.
This certificate also evidences and entitles the holder to certain Rights as
set forth in a Rights Agreement between KeyCorp, successor by merger to Society
Corporation, and First Chicago Trust Company of New York, Rights Agent, dated
as of August 25, 1989, as amended from time to time and under which Society
National Bank has been substituted as the Rights Agent (the "Rights
Agreement"), the terms of which are hereby incorporated in this certificate by
reference and a copy of which is on file at the principal executive offices of
KeyCorp. Under certain circumstances, as set forth in the Rights Agreement,
the Rights will be evidenced by separate certificates and will no longer be
evidenced by this certificate. KeyCorp will mail to the holder of this
certificate a copy of the Rights Agreement (as in effect on the date of
mailing) without charge promptly after receipt of a written request therefor.
Under certain circumstances, Rights that were beneficially owned by an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as those
terms are defined in the Rights Agreement) and any subsequent holder may become
null and void.
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REGULATIONS
OF
KEYCORP
(Effective March 1, 1994)
ARTICLE I
SHAREHOLDERS
Section 1. Place of Meeting. All meetings of the shareholders of the
Corporation shall be held at the office of the Corporation or at such other
places, within or without the State of Ohio, as may from time to time be
determined by the Board of Directors, the Chairman of the Board, or the
President and specified in the notice of such meeting.
Section 2. Annual Meetings. The annual meeting of the shareholders
of the Corporation for the election of directors, the consideration of reports
to be laid before such meeting, and the transaction of such other business as
may properly come before the meeting shall be held on the third Wednesday in
May in each year, if not a legal holiday under the laws of the place where the
meeting is to be held, and, if a legal holiday, then on the next succeeding day
not a legal holiday under the laws of such place, or on such other date and at
such hour as may from time to time be determined by the Board of Directors, the
Chairman of the Board, or the President.
Section 3. Special Meetings. Except as otherwise required by law and
subject to the rights of the holders of any class or series of preferred stock
of the Corporation, special meetings of the shareholders for any purpose or
purposes may be called only by (i) the Chairman of the Board, (ii) the
President, or, in the case of the President's absence, death, or disability,
the vice president authorized to exercise the authority of the President, (iii)
the Board of Directors by action at a meeting, or a majority of the entire
authorized Board of Directors acting without a meeting, or (iv) the persons who
hold 50% of all shares outstanding and entitled to vote at the special meeting.
Upon request in writing delivered either in person or by registered
mail to the Chairman of the Board, the President, or the Secretary by any
persons entitled to call a meeting of shareholders, such officer shall
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forthwith cause to be given to the shareholders entitled thereto notice of a
meeting to be held on a date not less than ten nor more than 60 days after the
receipt of such request, as such officer may fix. If such notice is not given
within 30 days after the delivery or mailing of such request, the persons
calling the meeting may fix the time of the meeting and give notice thereof in
the manner provided by law or as provided in these Regulations, or cause such
notice to be given by any designated representative.
Section 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of the shareholders, whether annual or special,
shall be given, either by personal delivery or by mail, not less than seven nor
more than 60 days before the date of the meeting to each shareholder of record
entitled to notice of the meeting, by or at the direction of the Chairman of
the Board, President or Secretary or any other person or persons required or
permitted by these Regulations to give such notice. If mailed, such notice
shall be deemed given when deposited in the United States mail, postage
prepaid, directed to the shareholder at such shareholder's address as it
appears on the records of the Corporation. Each such notice shall state the
place, date, and hour of the meeting, and the purpose or purposes for which the
meeting is called. Notice of adjournment of a meeting of shareholders need not
be given if the time and place to which it is adjourned are fixed and announced
at such meeting.
Section 5. Quorum. Except as otherwise provided by law or by the
Articles of Incorporation of the Corporation, the holders of shares entitled to
exercise a majority of the voting power of the Corporation at the meeting shall
constitute a quorum for the transaction of business at any meeting of the
shareholders; provided, however, that no action required by law, by the
Articles of Incorporation of the Corporation, or by these Regulations to be
authorized or taken by the holders of a designated proportion of the shares of
any particular class or of each class of the Corporation may be authorized or
taken by a lesser proportion.
Section 6. Adjournments. The holders of a majority of the voting
shares represented at a meeting, whether or not a quorum is present, may
adjourn such meeting from time to time.
Section 7. Advance Notice of Shareholder Proposals. At any annual or
special meeting of shareholders, proposals by shareholders and persons
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nominated for election as directors by shareholders shall be considered if
advance notice thereof has been timely given as provided in this Section 7, in
the case of proposals by shareholders, and as provided in Section 4(c) of
Article II, in the case of persons nominated for election as directors by
shareholders, and such proposals or nominations are otherwise proper for
consideration under applicable law and the Articles of Incorporation of the
Corporation. Notice of any proposal to be presented by any shareholder shall
be given in writing to the Secretary of the Corporation, delivered to or mailed
and received at the Corporation's principal executive offices, not less than 60
nor more than 90 days prior to the shareholders' meeting; provided, however,
that in the event that less than 75 days' notice to the shareholders or prior
public disclosure of the date of the meeting is given or made, the written
notice of such shareholder's intent to make such proposal must be given to the
Secretary not later than the close of business on the fifteenth day following
the earlier of the day on which such notice of the date of the meeting was
mailed or such public disclosure was made. Any shareholder who gives notice of
any such proposal shall deliver therewith the text of the proposal to be
presented and a brief written statement of the reasons why such shareholder
favors the proposal and setting forth such shareholder's name and record
address, the number and class of all shares of each class of stock of the
Corporation beneficially owned (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934) by such shareholder and any material
interest of such shareholder in the proposal (other than as a shareholder).
The person presiding at the meeting, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall
determine whether such notice under this Section 7 or under Section 4(c) of
Article II, as applicable, has been duly given and shall direct that proposals
and nominees not be considered if such notice (together with all required
information to be submitted by such shareholder under this Section 7 or under
Section 4(c) of Article II, as applicable) has not been given.
ARTICLE II
Board of Directors
Section 1. Number, Classification, and Term of Office. The Board of
Directors shall be divided into three classes. The respective terms of the
three classes of directors are staggered so that at any time the term of one
class will expire at the next annual meeting of shareholders thereafter
occurring, the term of a second
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class will expire at the second annual meeting of shareholders thereafter
occurring, and the term of a third class will expire at the third annual
meeting of shareholders thereafter occurring. At each annual meeting of
shareholders of the Corporation, the successors to the directors of the class
whose term will expire in that year shall be elected to hold office for a term
expiring at the annual meeting of shareholders occurring in the third year
after the date of their election. In each instance directors shall hold office
until their successors are chosen and qualified, or until the earlier death,
retirement, resignation, or removal of any such director as provided in Section
13 of this Article II.
At the Effective Time (as defined in Section 2 of Article IV of these
Regulations), the number of directors of the Corporation shall be 22, divided
into three classes as follows: one class of seven directors whose term will
expire at the next annual meeting of shareholders occurring after the Effective
Time, one class of seven directors whose term will expire at the second annual
meeting of shareholders occurring after the Effective Time, and one class of
eight directors whose term will expire at the third annual meeting of
shareholders occurring after the Effective Time. Through December 31, 1998,
not more than two directors shall be Insider Directors. "Insider Directors"
shall mean any person who, as of immediately prior to the Effective Time, was a
current or former officer of the Corporation or any of its subsidiaries or any
predecessor or constituent (by merger, consolidation, or otherwise) of the
Corporation or any of its subsidiaries, but the definition of "Insider
Directors" shall not include an individual who served solely in the capacity of
Secretary and General Counsel, but not as an employee, prior to the Effective
Time.
The Board of Directors or the shareholders may from time to time fix
or change the size of the Board of Directors to a total number of no fewer than
20 directors and no more than 24 directors; provided that, through December 31,
1998, no such action shall have the effect of increasing to more than two the
number of Insider Directors; provided, further, that through December 31, 1996,
each increase or decrease in the size of the Board shall be by two or a
multiple of two. The Board of Directors may, subject to the limitations
contained in the immediately preceding sentence regarding the number of
directors, the number of Insider Directors, and the requirement that any
increase or decrease in the number of directors be effected by a multiple of
two, fix or change the number of directors by the affirmative vote of
two-thirds of the entire authorized Board. The shareholders
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may, subject to the limitations contained in the first sentence of this
paragraph regarding the number of directors, the number of Insider Directors,
and the requirement that any increase or decrease in the number of directors be
effected by a multiple of two, fix or change the number of directors at a
meeting of the shareholders called for the purpose of electing directors (i) by
the affirmative vote of the holders of shares entitling them to exercise
three-quarters of the voting power of the Corporation represented at the
meeting and entitled to elect directors or (ii) if the proposed change in the
number of directors is recommended by two-thirds of the entire authorized Board
of Directors, by the affirmative vote of the holders of shares entitling them
to exercise a majority of the voting power of the Corporation represented at
the meeting and entitled to elect directors. If the Board of Directors or the
shareholders change the number of directors, the three classes of the Board of
Directors shall be divided into as equal a number of directors as possible,
with the Board of Directors or the shareholders, as the case may be, fixing or
determining the adjustment to be made in each class. No reduction in the
number of directors shall of itself have the effect of shortening the term of
any incumbent director. In the event that the Board of Directors increases the
number of directors, it may fill the vacancy or vacancies created by the
increase in the number of directors for the respective unexpired terms in
accordance with the provisions of Sections 4 and 14 of this Article II. In the
event the shareholders increase the number of directors and fail to fill the
vacancy or vacancies created thereby, the Board of Directors may fill such
vacancy or vacancies for the respective unexpired terms in accordance with the
provisions of Sections 4 and 14 of this Article II.
The number of directors and the number of directors of any class may
not be fixed or changed by the shareholders or directors, except (i) by
amending these Regulations in accordance with the provisions of Article X of
these Regulations, (ii) pursuant to an agreement of merger or consolidation
recommended by two-thirds of the members of the entire authorized Board of
Directors and adopted by the shareholders at a meeting held for such purpose by
the affirmative vote of the holders of shares entitling them to exercise a
majority of the voting power of the Corporation on such proposal, or (iii) as
provided in the immediately preceding paragraph of this Section 1 or in the
next following paragraph.
The foregoing provisions of this Section 1 are subject to the
automatic increase by two in the authorized number of directors and the right
of the holders
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of any class or series of preferred stock of the Corporation to elect two
directors of the Corporation during any time when dividends payable on such
shares are in arrears, all as set forth in the Articles of Incorporation of the
Corporation and/or the express terms of the preferred stock of the Corporation.
Section 2. Chairman of the Board, Chairman of the Executive
Committee, and Chairmen of Other Committees. Except as provided in this
Section 2 below, the Board of Directors may from time to time select from its
members one or more individuals to serve as Chairman of the Board, Chairman of
the Executive Committee, and Chairman of any of the other committees of the
Board of Directors. Except to the extent otherwise provided in Section 2 of
Article IV of these Regulations with respect to the position of Chairman of the
Board, these positions as Chairman of the Board, Chairman of the Executive
Committee, and Chairman of any other committees of the Board of Directors are
not officer positions (and the Corporation shall have no officer position known
as Chairman of the Board), but are strictly director positions, the sole
authority and responsibility of which is to preside at meetings of the
shareholders, the Board, or the applicable committee, as the case may be.
Subject to Section 3 of this Article II and notwithstanding anything to the
contrary in this Section 2, the officer of the Corporation who is the Chief
Executive Officer of the Corporation shall, if he is a director, serve as
Chairman of the Board and Chairman of the Executive Committee. The Chairman of
the Board shall, if present, preside at meetings of the Board of Directors and
at meetings of the shareholders. In the absence of the Chairman of the Board,
the President shall preside at such meetings.
Section 3. Chairman of the Board and Chairman of the Executive
Committee Through December 31, 1998. In accordance with the Merger Agreement
(as defined in Section 2 of Article IV of these Regulations), it is intended
that Victor J. Riley, Jr. shall be Chairman of the Board and Chairman of the
Executive Committee of the Board of Directors of the Corporation through
December 31, 1998 or his earlier failure to continue to be a director of the
Corporation, whether as a result of his death, resignation, removal as provided
in Section 13 of this Article II, or failure to be re-elected at the expiration
of his term as director. In accordance with the Merger Agreement, on December
31, 1998, Victor J. Riley, Jr. shall cease to be Chairman of the Board and
Chairman of the Executive Committee, unless he shall have earlier ceased to
hold those positions. In accordance with the Merger Agreement, it is intended
that Robert W. Gillespie shall become
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Chairman of the Board and Chairman of the Executive Committee of the
Corporation on the date (which in no event shall be later than December 31,
1998) on which Victor J. Riley, Jr. ceases to be Chairman of the Board and
Chairman of the Executive Committee, subject, in all cases, to Robert W.
Gillespie's earlier failure to continue to be a director of the Corporation,
whether as a result of his death, resignation, removal as provided in Section
13 of this Article II, or failure to be re-elected at the expiration of his
term as director. If Victor J. Riley, Jr. shall at any time prior to December
31, 1998 cease to hold for any reason one or both of his positions as Chairman
of the Board and Chairman of the Executive Committee, in accordance with the
Merger Agreement, it is intended that Robert W. Gillespie shall immediately
assume any such position, provided that he is then a director. Prior to Robert
W. Gillespie becoming Chairman of the Board and Chairman of the Executive
Committee, no individual (other than Robert W. Gillespie or any other person
designated by Robert W. Gillespie) shall be designated vice chairman or deputy
chairman, or with any position or title of similar import, of either the Board
of Directors or the Executive Committee. In the event that the Board of
Directors of the Corporation establishes an Executive Committee in accordance
with Section 1 of Article III of these Regulations, in accordance with the
Merger Agreement, it is intended that Victor J. Riley, Jr. and Robert W.
Gillespie shall each be members of the Executive Committee as long as they are
members of the Board of Directors. The provisions of this Section 3 shall
apply through December 31, 1998.
Section 4. Nominations. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors.
Subject to the rights of the holders of any class or series of preferred stock
of the Corporation, nominations for the election of directors may be made only:
(a) through December 31, 1998, by the affirmative
vote of three-quarters of the entire authorized Board of Directors and
three-quarters of the members of the Nominating Committee, if any,
then in office; provided, however, that if the Nominating Committee is
unable, for any reason, to approve by the requisite vote a nomination
for election of a particular director or directors, such nomination
shall be made instead by the affirmative vote of two-thirds of the
entire authorized Board of Directors and three-quarters of the members
of a committee to be comprised of (i) in the case of a nomination
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for election to fill a director position which was originally held at
the Effective Time by an individual who had been a director of KeyCorp
or any of its subsidiaries, all of the directors then in office who
immediately prior to the Effective Time had been directors of KeyCorp
or any of its subsidiaries or who have been elected to fill a director
position originally held by an individual who at the Effective Time
had been a director of KeyCorp or any of its subsidiaries, and (ii) in
the case of a nomination for election to fill a director position
which was originally held at the Effective Time by an individual who
had been a director of Society Corporation or any of its subsidiaries,
all of the directors then in office who immediately prior to the
Effective Time had been directors of Society Corporation or any of its
subsidiaries or who have been elected to fill a director position
originally held by an individual who at the Effective Time had been a
director of Society Corporation or any of its subsidiaries; provided,
further, that, in the case of a nomination for election to fill a
director position which resulted from an increase in the size of the
Board after the Effective Time in accordance with Section 1 of Article
II of these Regulations, such nomination shall be made by the
affirmative vote of three-quarters of the entire authorized Board of
Directors acting alone if the Nominating Committee is unable, for any
reason, to approve by the requisite vote a nomination to fill such
director position,
(b) after December 31, 1998, by the affirmative vote
of two-thirds of the entire authorized Board of Directors, and
(c) by any shareholder of the Corporation entitled
to vote for the election of directors at a meeting, but only if
written notice of such shareholder's intent to make such nomination is
given to the Secretary of the Corporation, delivered to or mailed and
received at the Corporation's principal executive offices, not less
than 60 nor more than 90 days prior to the meeting; provided, however,
that in the event that less than 75 days' notice to the shareholders
or prior public disclosure of the date of the meeting is given or
made, the written notice of such shareholder's intent to make such
nomination must be given to the Secretary not later than the close of
business on the fifteenth
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day following the earlier of the day on which such notice of the date
of the meeting was mailed or such public disclosure was made. Each
such notice of a shareholder's intent to make a nomination shall set
forth: (A) as to each person who is not an incumbent director when
the shareholder proposes to nominate such person for election as a
director, (1) the name, age, business, and residence address of such
person, (2) the principal occupation or employment of such person for
the last five years, (3) the class and number of shares of capital
stock of the Corporation which are beneficially owned by such person,
(4) all positions of such person as a director, officer, partner,
employee, or controlling shareholder of any corporation or other
business entity, (5) any prior position as a director, officer, or
employee of a depository institution or any company controlling a
depository institution, (6) any other information regarding such
person that would be required pursuant to paragraphs (a), (e) and (f)
of Item 401 of Regulation S-K adopted by the Securities and Exchange
Commission (or the corresponding provisions of any regulations
subsequently adopted by the Securities and Exchange Commission
applicable to the Corporation) to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange
Commission had such person been nominated, or intended to be
nominated, by the Board of Directors, and (7) the written consent of
each nominee to serve as a director of the Corporation if so elected,
and (B) as to the shareholder giving the notice, (1) the name and
record address of such shareholder, (2) a representation that the
shareholder is a holder of record of shares of the Corporation
entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to nominate the person or persons specified in
the notice, (3) a description of all arrangements or understandings
between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder, and (4)
the class and number of shares of capital stock of the Corporation
which are beneficially owned (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended) by
such shareholder.
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No person shall be eligible for election as a director unless nominated in
compliance with the foregoing procedure.
Section 5. Quorum, Adjournments, and Manner of
Acting. Except as otherwise provided by law, the Articles of Incorporation of
the Corporation, or these Regulations, a majority of the entire authorized
Board of Directors shall constitute a quorum for the transaction of business at
any meeting of the Board. Except as otherwise provided by law, the Articles of
Incorporation of the Corporation, or these Regulations, the affirmative vote of
a majority of the directors present at any meeting at which a quorum is present
shall be the act of the Board. In the absence of a quorum, a majority of the
directors present at a meeting duly held may adjourn the meeting to another
time and place. At any adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the originally
called meeting.
Notwithstanding the foregoing provisions of this
Section 5, the affirmative vote of at least two-thirds of the entire authorized
Board of Directors shall be required for the approval of any of the following
transactions: (a) any merger or consolidation of the Corporation (i) with any
interested shareholder, as such term is defined in Chapter 1704 of the Ohio
General Corporation Law, or (ii) with any other corporation if the merger or
consolidation is caused by any interested shareholder, (b) any recommendation
or approval of any transaction as a result of which any person will become an
interested shareholder, (c) any merger or consolidation involving the
Corporation and any other corporation with assets having an aggregate book
value equal to 50% or more of the aggregate book value of all the assets of the
Corporation determined on a consolidated basis, (d) any liquidation or
dissolution of the Corporation, (e) any sale, lease, exchange, mortgage,
pledge, transfer, or other disposition (in one transaction or a series of
transactions) to or with an interested shareholder of assets of the Corporation
which assets have an aggregate book value equal to 10% or more of the aggregate
book value of all the assets of the Corporation determined on a consolidated
basis, (f) any sale, lease, exchange, mortgage, pledge, transfer, or other
disposition (in one transaction or a series of transactions) to or with any
person of assets of the Corporation which assets have an aggregate book value
equal to 25% or more of the aggregate book value of all the assets of the
Corporation determined on a consolidated basis, (g) any transaction which
results in the issuance or transfer by the Corporation of more than 15% of the
voting stock of the Corporation to any person,
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(h) any transaction involving the Corporation which has the effect, directly or
indirectly, of increasing the proportionate share of the stock or securities of
any class or series of the Corporation which is owned by an interested
shareholder, (i) any transaction requiring the amendment of any provision of
the Articles of Incorporation of the Corporation if to amend such provision
otherwise would require an affirmative vote of at least two-thirds of the
entire authorized Board of Directors or any transaction requiring the amendment
of any provision of these Regulations if to amend such provision otherwise
would require an affirmative vote of at least two-thirds of the entire
authorized Board of Directors of the Corporation (provided, however, if the
amendment of any provision of these Regulations requires an affirmative vote of
more than two-thirds of the entire authorized Board of Directors, any
transactions having the same effect may only be authorized by the vote required
to amend such provision of these Regulations), and (j) any receipt by an
interested shareholder, other than proportionately as a shareholder of the
Corporation, of the benefit, directly or indirectly, of any loans, advances,
guarantees, pledges, or other financial benefits provided through the
Corporation.
Section 6. Place of Meeting. The Board of Directors
may hold its meetings at such place or places within or without the State of
Ohio as the Board may from time to time determine or as shall be specified or
fixed in the respective notices or waivers of notice thereof.
Section 7. Regular Meetings. Regular meetings of
the Board of Directors shall be held at such times and places as the Board
shall from time to time determine. If any day fixed for a regular meeting
shall be a legal holiday under the laws of the place where the meeting is to be
held, the meeting which would otherwise be held on that day shall be held at
the same hour on the next succeeding business day or at such other time and
place as the Board shall determine.
Section 8. Special Meetings. Special meetings of
the Board of Directors shall be held whenever called by the Chairman of the
Board or the President or by a majority of the directors then in office.
Section 9. Notice of Meetings. Notice of regular
meetings of the Board of Directors or of any adjourned meeting thereof need not
be given. Notice of each special meeting of the Board shall be mailed to each
director, addressed to such director at such director's residence or usual
place of business, at least two days before the day on which the meeting is to
be held or shall
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be sent to such director at such place by telegraph, telex, or telecopier (or
similar facsimile transmission), or be given personally or by telephone, not
later than the day before the meeting is to be held, but notice need not be
given to any director who shall, either before or after the meeting, submit a
signed waiver of such notice or who shall attend such meeting without
protesting prior to or at its commencement, the lack of notice to such
director. Every such notice shall state the time and place but need not state
the purpose of the meeting.
Section 10. Participation in Meeting by Means of
Communications Equipment. Any one or more members of the Board of Directors or
any committee thereof may participate in any meeting of the Board or of any
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at such meeting.
Section 11. Action Without Meeting. Any action
required or permitted to be taken at any meeting of the Board of Directors or
any committee thereof may be authorized or taken without a meeting with the
affirmative vote or approval of, and in a writing or writings signed by, all
the directors or all the committee members and if the writing or writings are
filed with or entered upon the records of the Corporation.
Section 12. Resignations. Any director of the
Corporation may resign at any time by oral statement to that effect made at a
meeting of the Board of Directors or any committee thereof or by giving written
notice to the Board of Directors, the Chairman of the Board, the President, or
the Secretary of the Corporation. Such resignation shall take effect at the
date of receipt of such notice or at any later date specified therein and,
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
Section 13. Removal of Directors. The Board of
Directors may remove any director and thereby create a vacancy on the Board:
(a) if by order of court he has been found to be of unsound mind or if he is
adjudicated a bankrupt or (b) if within 60 days from the date of his election
he does not qualify by accepting in writing his election to such office or by
acting at a meeting of directors.
All the directors, or all of the directors of a
particular class, or any individual director, may be
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removed from office, without assigning any cause, by the affirmative vote of
the holders of shares entitling them to exercise three- quarters of the voting
power of the Corporation entitled to elect directors in place of those to be
removed. In case of any such removal, a new director nominated in accordance
with Section 4 of this Article II may be elected at the same meeting for the
unexpired term of each director removed. Failure to elect a director to fill
the unexpired term of any director removed shall be deemed to create a vacancy
on the Board.
Section 14. Vacancies. Any vacancies on the Board
of Directors resulting from death, resignation, removal, or other cause shall
only be filled by the affirmative vote of two-thirds of the remaining directors
then in office, even though less than a quorum of the Board of Directors, or by
a sole remaining director. Newly created directorships resulting from any
increase in the number of directors by action of the Board of Directors shall
be filled by the affirmative vote of two-thirds of the directors then in
office, or if not so filled, by the shareholders at the next annual meeting
thereof or at a special meeting called for that purpose in accordance with
Section 3 of Article I of these Regulations. In the event the shareholders
increase the authorized number of directors in accordance with these
Regulations but fail at the meeting at which such increase is authorized, or an
adjournment of that meeting, to elect the additional directors provided for, or
if the shareholders fail at any meeting to elect the whole authorized number of
directors, such vacancies may be filled by the affirmative vote of two-thirds
of the directors then in office. Any director elected in accordance with the
three preceding sentences of this Section 14 shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified. Notwithstanding the foregoing
provisions of this Section 14, through December 31, 1998, the Board of
Directors shall only fill vacancies (however caused) with persons or candidates
who have been nominated or approved by the affirmative vote of three-quarters
of the entire authorized Board of Directors and three-quarters of the members
of the Nominating Committee, if any, or, if the Nominating Committee is unable,
for any reason, to approve by the requisite vote a nomination to fill a vacancy
of a particular director or directors, such vacancy shall be filled instead by
the affirmative vote of two-thirds of the entire authorized Board of Directors
and the applicable committee, if any, contemplated by the provisos in Section
4(a) of this Article II. The provisions of this Section 14 shall not restrict
the rights of holders of any
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class or series of preferred stock of the Corporation to fill vacancies in
directors elected by such holders as provided by the express terms of the
preferred stock.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive Committee. The Board of
Directors may, by resolution adopted by the affirmative vote of at least
two-thirds of the entire authorized Board, designate annually (i) four or more
of its members to constitute members of an Executive Committee of the Board of
Directors of the Corporation (the "Executive Committee") and (ii) one or more
of its members to be alternate members of the Executive Committee to take the
place of any absent member or members at any meeting of the Executive
Committee. In accordance with the Merger Agreement, it is intended that
through December 31, 1998, two of the members of the Executive Committee shall
be Victor J. Riley, Jr. and Robert W. Gillespie, as long as they are directors
of the Corporation. The Executive Committee shall have and may exercise,
between meetings of the Board, all the powers and authority of the Board in the
management of the business and affairs of the Corporation, including, without
limitation, the power and authority to declare a dividend and to authorize the
issuance of stock, and may authorize the seal of the Corporation to be affixed
to all papers which may require it, except that the Executive Committee shall
not have such power or authority in reference to filling vacancies on the Board
or on any committee of the Board, including the Executive Committee.
The Board shall have power at any time by the
affirmative vote of at least two-thirds of the entire authorized Board to
change the membership of the Executive Committee, to fill all vacancies in it,
and to discharge it, either with or without cause.
Section 2. Nominating Committee. The provisions of
this Section 2 shall apply through December 31, 1998. In accordance with the
Merger Agreement, it is intended that the Board of Directors will, by
resolution adopted by the affirmative vote of at least two-thirds of the entire
authorized Board, designate annually four of its members to constitute members
of a Nominating Committee of the Board of Directors of the Corporation (the
"Nominating Committee") and that the Nominating Committee will consist of two
individuals who were serving as directors of KeyCorp at the Effective Time (one
of whom shall be Victor J. Riley, Jr., as long as he
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shall be a director of the Corporation), and two individuals who were serving
as directors of Society Corporation at the Effective Time (one of whom shall be
Robert W. Gillespie, as long as he shall be a director of the Corporation).
Vacancies on the Nominating Committee will be promptly filled by the Board of
Directors. The Board of Directors shall have the power at any time, by the
affirmative vote of at least two-thirds of the entire authorized Board, to
change the membership of, to fill all vacancies in, and to discharge the
Nominating Committee, either with or without cause.
Section 3. Other Committees. The Board of Directors
may, by resolution adopted by the affirmative vote of at least two-thirds of
the entire authorized Board, designate from among its members one or more other
committees, each of which shall (i) consist of not less than three directors,
together with such alternates as the Board of Directors may appoint to take the
place of any absent member or members at any meeting of such committee, and
(ii) except as otherwise prescribed by law, have such authority of the Board as
may be specified in the resolution of the Board designating such committee.
The Board shall have power at any time, by the affirmative vote of at least
two-thirds of the entire authorized Board, to change the membership of, to fill
all vacancies in, and to discharge any such committee, either with or without
cause.
Section 4. Procedure, Meetings, and Quorum. Regular
meetings of the Executive Committee or any other committee of the Board of
Directors, of which no notice shall be necessary, may be held at such times and
places as may be fixed by a majority of the members thereof. Special meetings
of the Executive Committee or any other committee of the Board shall be called
at the request of the Chairman of the Board or the President or the Chairman of
any committee. Notice of each special meeting of the Executive Committee or
any other committee of the Board shall be sent by mail to each member thereof
at such member's residence or usual place of business, at least two days before
the day on which the meeting is to be held, or shall be sent to such member at
such place by telegraph, telex, or telecopier (or similar facsimile
transmission), or be given personally or by telephone to each member thereof
not later than the day before the day on which the meeting is to be held, but
notice need not be given to any member who shall, either before or after the
meeting, submit a signed waiver of such notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of such notice to
such member. Any special meeting of the Executive Committee or any other
committee of the Board shall be a legal meeting without any notice thereof
having
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been given, if all the members thereof shall be present thereat. Notice of any
adjourned meeting of any committee of the Board need not be given. The
Executive Committee or any other committee of the Board may adopt such rules
and regulations not inconsistent with the provisions of law, the Articles of
Incorporation of the Corporation, or these Regulations for the conduct of its
meetings as the Executive Committee or any other committee of the Board may
deem proper. A majority of the members of the Executive Committee or any other
committee of the Board shall constitute a quorum for the transaction of
business at any meeting, and the vote of a majority of the members thereof
present at any meeting at which a quorum is present shall be the act of such
committee. The Executive Committee or any other committee of the Board of
Directors shall keep written minutes of its proceedings and shall report on
such proceedings to the Board.
Section 5. Chairman of the Executive Committee. The
Chairman of the Executive Committee shall, if present, preside at the meetings
of the Executive Committee. In the absence of the Chairman of the Executive
Committee, the President shall preside at such meetings.
ARTICLE IV
OFFICERS
Section 1. Number and Term of Office. The
Corporation shall have a Chief Executive Officer and a President and may have a
Chief Operating Officer, one or more Vice Presidents, one or more of whom may
be designated as Executive or Senior Vice Presidents or by similar titles, a
Treasurer, a Secretary, and such other officers or agents, subordinate to the
Chief Executive Officer and the President, with such titles as the Board of
Directors may from time to time determine, each to have such authority,
functions, or duties as in these Regulations provided or as the Board may from
time to time determine, and, except as provided in Section 2 of this Article
IV, each to hold office for such term as may be prescribed by the Board and
until such person's successor shall have been chosen and shall qualify or until
such person's death, retirement, resignation, or removal as provided in Section
4 of this Article IV. Subject to the provisions of Section 2 of this Article
IV, one person may hold and perform the duties of any two or more of said
offices; provided, however, that no officer shall execute, acknowledge, or
verify any instrument in more than one capacity if such instrument is required
by law, the Articles of Incorporation of the Corporation, or these
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Regulations to be executed, acknowledged, or verified by two or more officers.
Section 2. Chief Executive Officer and President
Through December 31, 1998. The most senior officer of the Corporation shall be
the President, who also shall be the Chief Executive Officer of the Corporation
(and may use the term "Chief Executive Officer" as part of his title) except
during periods when there is a separate office of Chief Executive Officer, in
which case the officer holding the separate office of Chief Executive Officer
shall be the most senior officer of the Corporation and the President shall be
the second most senior officer. Pursuant to the Merger Agreement, at the
Effective Time Victor J. Riley, Jr. is the Chief Executive Officer of the
Corporation for a term expiring on December 31, 1995, or upon his earlier
death, retirement, resignation, or removal as provided in the last sentence of
Section 4 of this Article IV. There shall be a separate office of Chief
Executive Officer of the Corporation during the period from the Effective Time
until December 31, 1995 or any earlier date on which Victor J. Riley, Jr.
ceases for any reason (including death, retirement, resignation, or removal as
provided in the last sentence of Section 4 of this Article IV) to be Chief
Executive Officer, and as long as Victor J. Riley, Jr. is the Chief Executive
Officer, he shall also hold the office of Chairman of the Board (which for such
period shall be an office of the Corporation), but there shall be no separate
office of Chief Executive Officer after December 31, 1995 or any earlier date
on which Victor J. Riley, Jr. ceases for any reason (including death,
retirement, resignation, or removal as provided in the last sentence of Section
4 of this Article IV) to be Chief Executive Officer of the Corporation and
after such date the title "Chairman of the Board" shall only be a director
position and not an officer position. Pursuant to the Merger Agreement, at the
Effective Time, Robert W. Gillespie is the President of the Corporation for a
term expiring on December 31, 1998, or upon his earlier death, retirement,
resignation, or removal as provided in the last sentence of Section 4 of this
Article IV. Accordingly, at such time (which in no event shall be later than
December 31, 1995) as Victor J. Riley, Jr. ceases for any reason to hold the
separate office of Chief Executive Officer, Robert W. Gillespie shall, by
virtue of being President, also be the Chief Executive Officer through the
expiration of his term on December 31, 1998, or until his earlier death,
retirement, resignation, or removal as provided in the last sentence of Section
4 of this Article IV. In addition, pursuant to the Merger Agreement, at the
Effective Time, Robert W. Gillespie is the Chief Operating Officer of the
Corporation for a term expiring on
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the date on which Victor J. Riley, Jr. ceases to be the Chief Executive Officer
(which in no event shall be later than December 31, 1995). On December 31,
1995, Victor J. Riley, Jr. shall retire from all positions he then holds as an
officer of the Corporation and as an officer or employee of any or all of its
subsidiaries and shall no longer be an officer of the Corporation or an
officer, employee, or director of any of its subsidiaries. During the terms of
their respective Employment Agreements, Victor J. Riley, Jr. and Robert W.
Gillespie shall have the respective powers, and perform the respective duties,
set forth in each of their respective Employment Agreements (and applicable
exhibits, if any, thereto), dated October 1, 1993, with Society Corporation.
Any modification, amendment, or failure to honor the terms of either of such
Employment Agreements at any time during their respective terms shall require
the affirmative vote of three-quarters of the entire authorized Board of
Directors. As used in these Regulations, (i) "Effective Time" shall have the
meaning assigned to it in the Supplemental Agreement to Agreement and Plan of
Merger, dated as of October 1, 1993, by and between Society Corporation and
KeyCorp and (ii) "Merger Agreement" shall mean the Agreement and Plan of Merger
and the related Supplemental Agreement to Agreement and Plan of Merger, both
dated as of October 1, 1993, by and between Society Corporation and KeyCorp.
The provisions of this Section 2 shall apply through December 31, 1998.
Section 3. Authority and Duties of Officers. The
officers of the Corporation shall have such authority and shall perform such
duties as are customarily incident to their respective offices, or as may be
determined by the Board of Directors, regardless of whether such authority and
duties are customarily incident to such offices.
Section 4. Removal. Except as provided in the last
sentence of this Section 4, any officer may at any time be removed, either with
or without cause, by the Board of Directors or any authorized committee
thereof, or, except in the case of any officer elected by the Board or an
authorized committee thereof, by any superior officer upon whom such power may
be conferred by the Board or any authorized committee thereof, in any case
without prejudice to the contract rights, if any, of such officer.
Notwithstanding the foregoing, through December 31, 1998, neither Victor J.
Riley, Jr. nor Robert W. Gillespie shall be removed by action of the Board of
Directors from any office held by either of them except by the affirmative vote
of three-quarters of the entire authorized Board of
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Directors, and in any case without prejudice to the contract rights of either
of them.
Section 5. Resignation. Any officer may resign at
any time by giving notice to the Board of Directors, the Chief Executive
Officer, the President, or the Secretary of the Corporation. Any such
resignation shall take effect at the date of receipt of such notice or at any
later date specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies. Except as provided in Section
2 of this Article IV with respect to a vacancy in the office of Chief Executive
Officer, a vacancy in any office because of death, retirement, resignation,
removal, or any other cause may be filled in the manner prescribed in these
Regulations for election to such office.
ARTICLE V
INDEMNIFICATION
The Corporation shall indemnify, to the full extent
permitted or authorized by the Ohio General Corporation Law as it may from time
to time be amended, any person made or threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that he is or
was a director, officer, or employee of the Corporation, or is or was serving
at the request of the Corporation as a director, trustee, officer, or employee
of a bank, other corporation, partnership, joint venture, trust, or other
enterprise. In the case of a merger into this Corporation of a constituent
corporation which, if its separate existence had continued, would have been
required to indemnify directors, officers, or employees in specified situations
prior to the merger, any person who served as a director, officer, or employee
of the constituent corporation, or served at the request of the constituent
corporation as a director, trustee, officer, or employee of a bank, other
corporation, partnership, joint venture, trust, or other enterprise, shall be
entitled to indemnification by this Corporation (as the surviving corporation)
for acts, omissions, or other events or occurrences prior to the merger to the
same extent he would have been entitled to indemnification by the constituent
corporation if its separate existence had continued. The indemnification
provided by this Article V shall not be deemed exclusive of any other rights to
which any person
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seeking indemnification may be entitled under the Articles of Incorporation of
the Corporation or these Regulations, or any agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, trustee,
officer, or employee and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates for Shares. Certificates
representing shares of stock of each class of the Corporation, whenever
authorized by the Board of Directors, shall be in such form as shall be
approved by the Board or by the Chairman of the Board or President or a Vice
President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer. The certificates representing shares of stock of each
class shall be signed by, or in the name of, the Corporation by the Chairman of
the Board or the President or a Vice President and by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer of the
Corporation. Any or all such signatures may be facsimiles, engraved, stamped,
or printed if countersigned by an incorporated transfer agent or registrar.
Although any officer, transfer agent or registrar whose manual or facsimile
signature is affixed to such a certificate ceases to be such officer, transfer
agent, or registrar before such certificate has been delivered, such
certificate nevertheless shall be effective in all respects when delivered.
The Corporation may issue shares of any class of its capital stock without
issuing certificates therefor.
Section 2. Transfer of Shares. Transfers of shares
of stock of each class of the Corporation shall be made only on the books of
the Corporation by the holder thereof, or by such holder's attorney thereunto
authorized by a power of attorney duly executed and filed with the Secretary of
the Corporation or a transfer agent for such stock, if any, and on surrender of
the certificate or certificates for such shares properly endorsed or
accompanied by a duly executed stock transfer power and the payment of all
taxes thereon. The person in whose name shares stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation. No transfer of shares shall be valid as against the Corporation
and its shareholders and creditors
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for any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
Section 3. Lost, Destroyed, and Mutilated
Certificates. The holder of any share of stock of the Corporation shall
immediately notify the Corporation of any loss, theft, destruction, or
mutilation of the certificate therefor; the Corporation may issue to such
holder a new certificate or certificates for shares, upon the surrender of the
mutilated certificate or, in the case of loss, theft, or destruction of the
certificate, upon satisfactory proof of such loss, theft, or destruction; the
Corporation, or the transfer agents and registrars for the stock, may, in their
discretion, require the owner of the lost, stolen, or destroyed certificate, or
such person's legal representative, to provide the Corporation a bond in such
sum and with such surety or sureties as they may direct to indemnify the
Corporation and such transfer agents and registrars against any claim that may
be made on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of such new certificate.
Section 4. Regulations. The Board of Directors may
make such additional rules and regulations as it may deem expedient concerning
the issue and transfer of certificates representing shares of stock of each
class of the Corporation and may make such rules and take such action as it may
deem expedient concerning the issue of certificates in lieu of certificates
claimed to have been lost, destroyed, stolen, or mutilated.
ARTICLE VII
RECORD DATES
For any lawful purpose, including the determination
of the shareholders who are entitled to receive notice of or to vote at a
meeting of the shareholders, the Board of Directors may fix a record date in
accordance with the provisions of the Ohio General Corporation Law. The record
date for the purpose of the determination of the shareholders who are entitled
to receive notice of or to vote at a meeting of the shareholders shall continue
to be the record date for all adjournments of the meeting unless the Board of
Directors or the persons who shall have fixed the original record date shall,
subject to the limitations set forth in the Ohio General Corporation Law, fix
another date and shall cause notice thereof and of the date to which the
meeting shall have been adjourned to be given to shareholders of
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record as of the newly fixed date in accordance with the same requirements as
those applying to a meeting newly called. The Board of Directors may close the
share transfer books against transfers of shares during the whole or any part
of the period provided for in this Article VII, including the date of the
meeting of the shareholders and the period ending with the date, if any, to
which adjourned. If no record date is fixed therefor, the record date for
determining the shareholders who are entitled to receive notice of a meeting of
the shareholders shall be the date next preceding the day on which notice is
given, and the record date for determining the shareholders who are entitled to
vote at a meeting of shareholders shall be the date next preceding the day on
which the meeting is held.
ARTICLE VIII
CORPORATE SEAL
The corporate seal of this Corporation shall be
circular in form and shall contain the name of the Corporation. Failure to
affix the seal to any instrument or document executed on behalf of the
Corporation shall not affect the validity of such instrument or document unless
otherwise expressly provided by law.
ARTICLE IX
OFFICES
The headquarters and principal executive offices of
the Corporation shall be located in the City of Cleveland, County of Cuyahoga,
State of Ohio. The Corporation may also have such other office or offices, and
keep the books and records of the Corporation, except as may otherwise be
required by law, at such other place or places, either within or without the
State of Ohio, as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE X
AMENDMENTS
Until December 31, 1998, the provisions of this
Article X, Sections 1, 2, 3, 4, 13, and 14 of Article II, Section 2 of Article
III, Sections 2 and 4 of Article IV, and Article IX may only be amended,
repealed,
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or altered (i) by the affirmative vote of the holders of shares entitling them
to exercise three-quarters of the voting power of the Corporation on such
proposal, (ii) if such amendment, repeal, or alteration is recommended by
three-quarters of the entire authorized Board of Directors, by the affirmative
vote of the holders of shares entitling them to exercise a majority of the
voting power of the Corporation on such proposal, or (iii) without a meeting,
by the written consent of the holders of shares entitling them to exercise 100%
of the voting power of the Corporation on such proposal. Until December 31,
1998, any Regulations other than those Regulations specifically listed in the
immediately preceding sentence, and after December 31, 1998, any Regulations,
may be adopted, amended, repealed, or altered (i) by the affirmative vote of
the holders of shares entitling them to exercise three- quarters of the voting
power of the Corporation on such proposal, (ii) if such adoption, amendment,
repeal, or alteration, is recommended by two-thirds of the entire authorized
Board of Directors, by the affirmative vote of the holders of shares entitling
them to exercise a majority of the voting power of the Corporation on such
proposal, or (iii) without a meeting, by the written consent of the holders of
shares entitling them to exercise 100% of the voting power of the Corporation
on such proposal.
It is the intent that these Regulations be enforced
to the maximum extent permitted by law. If in any judicial proceeding, a court
shall refuse to enforce any provision of these Regulations for the reason that
such provision is deemed to be unenforceable or invalid under applicable law,
then it is the intent that such otherwise unenforceable or invalid provision be
enforced and valid to the maximum extent permitted by applicable law. The
invalidity or unenforceability of any provision of these Regulations shall not
invalidate or render unenforceable any other provision of these Regulations, as
each provision is intended to be severable.
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AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
KEYCORP
ARTICLE I
NAME
The name of the corporation (hereinafter called the "Corporation") is
"KeyCorp."
ARTICLE II
PRINCIPAL OFFICE
The principal office and headquarters of the Corporation shall be
located in the City of Cleveland, County of Cuyahoga, State of Ohio.
ARTICLE III
PURPOSES
The purposes of the Corporation are:
(a) to organize, acquire, invest in, own, or control shares and other
securities of banks, other depository institutions, and other
companies which a bank holding company is permitted to own or control
by the provisions of the Bank Holding Company Act of 1956, as now in
effect or hereafter amended, and to carry on the business of a bank
holding company in conformity with the Bank Holding Company Act of
1956, as now in effect or hereafter amended,
(b) to do whatever is deemed necessary, incidental, or conducive to
carrying out any of the purposes of the Corporation; and
(c) to engage in any lawful act or activity for which corporations
may be formed under the Ohio General Corporation Law.
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ARTICLE IV
AUTHORIZED SHARES OF CAPITAL STOCK
SECTION 1. The authorized number of shares of the
Corporation is 926,400,000, of which 1,400,000 shall be shares of 10%
Cumulative Preferred Stock, Class A, of the par value of $5.00 per share, as
described in Part A of this Article IV (hereinafter called "10% Cumulative
Preferred Stock"), 25,000,000 shall be shares of preferred stock, with a par
value of $1 each, as described in Part B of this Article IV (hereinafter called
"Preferred Stock"), and 900,000,000 shall be Common Shares, with a par value of
$1 each, as described in Part C of this Article IV (hereinafter called "Common
Shares").
The express terms of each class are as follows:
Part A
Express Terms of 10% Cumulative Preferred Stock, Class A.
SECTION 1. Number of Shares; Designation. The
distinctive designation of this preferred stock is "10% Cumulative Preferred
Stock, Class A", and the aggregate number of shares that shall constitute such
class of preferred stock is 1,400,000.
SECTION 2. Dividend Rights.
(a) Dividends shall be payable on the shares of the 10% Cumulative
Preferred Stock when, as and if declared by the Board of Directors or
a duly authorized committee thereof, out of funds legally available
therefor: (A) for the period (the "Initial Dividend Period") from the
date of their original issue (which shall be the date of the Effective
Time) to and including the day next preceding the first day of the
first full quarterly dividend period beginning after the date of the
Effective Time, and (B) for each quarterly dividend period thereafter
(the Initial Dividend Period and each quarterly dividend period being
hereinafter individually referred to as a "Dividend Period" and
collectively referred to as "Dividend Periods"), which quarterly
Dividend Periods shall commence on March 31, June 30, September 30,
and December 31 in each year, commencing with the first such March 31,
June 30, September 30, or December 31
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after the date of the Effective Time, and shall end on and include the
day next preceding the first day of the next Dividend Period, at a
rate per annum of the liquidation preference thereof equal to 10% (the
"Dividend Rate"). Dividends shall be cumulative from the date of
original issue of such shares (which shall be the date of the
Effective Time) and shall be payable, when, as and if declared by the
Board of Directors, on March 31, June 30, September 30, and December
31 of each year, commencing with the first such March 31, June 30,
September 30, or December 31 after the date of the Effective Time;
provided, however, that in lieu of any dividend payment by KeyCorp to
holders of shares of 10% Cumulative Preferred Stock, Series B, of
KeyCorp (the "KeyCorp Series B Preferred") in respect of the KeyCorp
Series B Preferred Stock for the portion of the then current "Dividend
Period" (as defined in the terms of the KeyCorp Series B Preferred
Stock contained in the Restated Certificate of Incorporation of
KeyCorp, as amended) that shall have elapsed prior to the date of the
Effective Time (the "Series B Transition Period"), the Corporation
shall pay, on the first dividend payment date for 10% Cumulative
Preferred Stock to holders of record of 10% Cumulative Preferred Stock
on the record date for such dividend payment, the dividend that shall
have accrued on the KeyCorp Series B Preferred Stock for the Series B
Transition Period (the "Series B Transition Period Dividend Payment").
However, notwithstanding any provision of this Section 2 to the
contrary, in the event that the date of the Effective Time is after
the regularly scheduled record date for dividends on the KeyCorp
Series B Preferred Stock for the then current "Dividend Period" of the
KeyCorp Series B Preferred Stock and on or before the regularly
scheduled payment date for such quarterly dividend, (W) KeyCorp shall
pay the full dividend for such then current "Dividend Period" on or
before the date of the Effective Time to holders of record of shares
of KeyCorp Series B Preferred Stock on such record date, (X) the
Corporation shall not make and shall have no obligation to make the
Series B Transition Period Dividend Payment or any other payment to
the holders of shares of KeyCorp Series B Preferred Stock with respect
to such then current "Dividend Period", (Y) dividends on the 10%
Cumulative Preferred Stock of the Corporation will accrue only from
and after the day immediately following the last day of such then
current "Dividend Period" of the KeyCorp Series B
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Preferred Stock, and (Z) no dividend will accrue or be paid on the 10%
Cumulative Preferred Stock of the Corporation with respect to any
period prior to such date. Each such dividend on the 10% Cumulative
Preferred Stock shall be paid to the holders of record of shares of
the 10% Cumulative Preferred Stock as they appear on the stock
register of the Corporation on such record date, not more than 45
days or less than 14 days preceding the payment date thereof, as
shall be fixed by the Board of Directors. Dividends on account of
arrears for any past Dividend Periods may be declared and paid at
any time, without reference to any regular dividend payment date,
to holders of record on such date, not more than 45 days or less
than 14 days preceding the payment date thereof, as may be fixed
by the Board of Directors.
(b) Dividends payable on shares of the 10% Cumulative Preferred Stock
for any period greater or less than a full Dividend Period, including
the Initial Dividend Period, shall be computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends payable on
shares of the 10% Cumulative Preferred Stock for each full Dividend
Period shall be computed by annualizing the Dividend Rate and dividing
by four.
(c) The Corporation shall not declare or pay or set apart for payment
any dividends on any class of preferred stock ranking, as to
dividends, on a parity with or junior to the 10% Cumulative Preferred
Stock unless full cumulative dividends have been or contemporaneously
are declared and paid, or declared and a sum sufficient for payment
thereof is set apart for payment, for all Dividend Periods terminating
on or prior to the date of payment of any such dividends on such other
classes of preferred stock. When dividends are not paid in full upon
the 10% Cumulative preferred stock and any other class of preferred
stock ranking on a parity therewith as to dividends, all dividends
declared upon shares of the 10% Cumulative Preferred Stock and any
other class of preferred stock ranking on a parity therewith as to
dividends shall be declared pro rata so that the amount of dividends
declared per share on the shares of the 10% Cumulative Preferred Stock
and such other class of preferred stock shall in all cases bear to
each other the same ratio that the accrued dividends per share on the
shares of the 10% Cumulative Preferred Stock and such other class of
preferred stock bear to each other. Except as provided in the
preceding sentence, unless
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full cumulative dividends on the 10% Cumulative Preferred Stock have
been paid for all past Dividend Periods, no dividends (other than in
Common Shares or another stock ranking junior to the 10% Cumulative
Preferred Stock as to dividends and upon liquidation) shall be
declared or paid or set aside for payment nor shall any other
distribution be made upon the Common Shares or on any other stock of
the Corporation ranking junior to or on a parity with the 10%
Cumulative Preferred Stock as to dividends or upon liquidation.
Unless full cumulative dividends on the 10% Cumulative Preferred Stock
have been paid for all past dividend payment periods, no Common Shares
or any other stock of the Corporation ranking junior to or on a parity
with the 10% Cumulative Preferred Stock as to dividends or upon
liquidation shall be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by
the Corporation or any subsidiary, except by conversion into or
exchange for stock of the Corporation ranking junior to the 10%
Cumulative Preferred Stock as to dividends and upon liquidation.
SECTION 3. Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation, the holders of shares of the 10% Cumulative Preferred Stock are
entitled to receive out of the assets of the Corporation available for
distribution to shareholders, before any distribution of assets is made to
holders of Common Shares or any other class of stock ranking junior to the 10%
Cumulative Preferred Stock upon liquidation, liquidating distributions in the
amount of $125 per share plus accrued and unpaid dividends. If, upon any
voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation the amounts payable with respect to the 10% Cumulative Preferred
Stock and any other shares of stock of the Corporation ranking as to any such
distribution on a parity with the 10% Cumulative Preferred Stock are not paid
in full, the holders of shares of the 10% Cumulative Preferred Stock and of
such other shares will share ratably in any such distribution of assets of the
Corporation in proportion to the full respective preferential amounts to which
they are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of the 10%
Cumulative Preferred Stock will not be entitled to any further participation in
any distribution of assets by the Corporation.
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SECTION 4. Redemption.
The shares of the 10% Cumulative Preferred Stock are
not redeemable prior to June 30, 1996. On and after such date, the 10%
Cumulative Preferred Stock is redeemable in cash at the option of the
Corporation, in whole or in part, from time to time upon not less than 30 nor
more than 60 days' notice, with the prior approval of the Federal Reserve Board
(if such approval is required), at $125 per share plus all accrued and unpaid
dividends to the date fixed for redemption.
If fewer than all the outstanding shares of the 10%
Cumulative Preferred Stock are to be redeemed, the number of shares to be
redeemed will be determined by the Board of Directors and such shares shall be
redeemed pro rata from the holders of record of such shares in proportion to
the number of such shares held by such holders (with adjustments to avoid
redemption of fractional shares) or by lot in a manner determined by the Board
of Directors.
Notwithstanding the foregoing, if any dividends,
including any accumulation, on the shares of the 10% Cumulative Preferred Stock
are in arrears, no shares of the 10% Cumulative Preferred Stock shall be
redeemed unless all outstanding shares of the 10% Cumulative Preferred Stock
are simultaneously redeemed, and the Corporation shall not purchase or
otherwise acquire any shares of the 10% Cumulative Preferred Stock; provided,
however, that the foregoing shall not prevent the purchase or acquisition of
shares of the 10% Cumulative Preferred Stock pursuant to a purchase or exchange
offer provided such offer is made on the same terms to all holders of shares of
the 10% Cumulative Preferred Stock.
Notice of redemption shall be given by mailing the
same to each record holder of shares of the 10% Cumulative Preferred Stock to
be redeemed, not less than 30 nor more than 60 days prior to the date fixed for
redemption thereof, to the respective addresses of such holders as the same
shall appear on the stock books of the Corporation. Each notice shall state:
(i) the redemption date; (ii) the number of shares and series of the 10%
Cumulative Preferred Stock to be redeemed; (iii) the redemption price; (iv) the
place or places where certificates for such shares of 10% Cumulative Preferred
Stock are to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date. If fewer
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than all the shares of the 10% Cumulative Preferred Stock held by any holder
are to be redeemed, the notice mailed to such holder shall also specify the
number of shares of the 10% Cumulative Preferred Stock to be redeemed from such
holder.
After the date fixed for the redemption of shares of
the 10% Cumulative Preferred Stock by the Corporation, the holders of shares
selected for redemption shall cease to be shareholders with respect to such
shares and shall have no interest in or claim against the Corporation by virtue
thereof and shall have no voting or other rights with respect to such shares,
except the right to receive the moneys payable upon such redemption from the
Corporation, without interest thereon, upon surrender (and endorsement, if
required by the Corporation) of their certificates, and the shares represented
thereby shall no longer be deemed to be outstanding. The Corporation may, at
its option, at any time after a notice of redemption has been given, deposit
the redemption price for the shares of the 10% Cumulative Preferred Stock
designated for redemption and not yet redeemed, plus any accrued and unpaid
dividends thereon to the date fixed for redemption, with the transfer agent or
agents for the 10% Cumulative Preferred Stock, as a trust fund for the benefit
of the holders of the shares of the 10% Cumulative Preferred Stock designated
for redemption. From and after the making of such deposit, the holders of the
shares designated for redemption shall cease to be shareholders with respect to
such shares and shall have no interest in or claim against the Corporation by
virtue thereof and shall have no voting or other rights with respect to such
shares, except the right to receive from such trust fund the moneys payable
upon such redemption, without interest thereon, upon surrender (and
endorsement, if required by the Corporation) of their certificates, and the
shares represented thereby shall no longer be deemed to be outstanding. Any
balance of such moneys remained unclaimed at the end of the five-year period
commencing on the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its Board of Directors.
Any shares of the 10% Cumulative Preferred Stock that
shall at any time have been redeemed shall, after such redemption, be deemed
retired.
SECTION 5. Voting Rights. Except as indicated
below, or except as required by applicable law, the holders of the 10%
Cumulative Preferred Stock shall not
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have any voting powers, either general or special, except that:
(a) if the Corporation shall fail to pay full cumulative dividends on
the shares of the 10% Cumulative Preferred Stock or any other class of
Preferred Stock for six quarterly dividend payment periods, whether or
not consecutive, the number of directors will be increased by two, and
the holders of all outstanding shares of 10% Cumulative Preferred
Stock and all other outstanding classes of Preferred Stock, voting as
a single class without regard to series, will be entitled to elect
such additional two directors until full cumulative dividends for all
past dividend payment periods on all outstanding shares of 10%
Cumulative Preferred Stock and all other classes of Preferred Stock
have been paid or declared and set apart for payment. Such right to
vote separately as a class to elect directors shall, when vested, be
subject, always, to the same provisions for the vesting of such right
to elect directors separately as a class in the case of future
dividend defaults. At any time when such right to elect directors
separately as a class shall have so vested, the Corporation may, and
upon the written request of the holders of record of not less than
twenty percent of the total number of shares of 10% Cumulative
Preferred Stock and all other classes of Preferred Stock of the
Corporation then outstanding shall, call a special meeting of
shareholders for the election of such directors. In the case of such
a written request, such special meeting shall be held within 90 days
after the delivery of such request and, in either case, at the place
and upon the notice provided by law and in the Regulations of the
Corporation, provided that the Corporation shall not be required to
call such a special meeting if such request is received less than 120
days before the date fixed for the next ensuing annual meeting of
shareholders of the Corporation. Directors elected as aforesaid shall
serve until the next annual meeting of shareholders of the Corporation
or until their respective successors shall be elected and qualify.
If, prior to the end of the term of any director elected as aforesaid,
a vacancy in the office of such director shall occur during the
continuance of a default in dividends on the 10% Cumulative Preferred
Stock by reason of death, resignation, or disability, such vacancy
shall be filled for the unexpired term by the appointment by the
remaining director or directors
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elected as aforesaid of a new director for the unexpired term of such
former director,
(b) affirmative vote or consent of the holders of at least two-thirds
of the outstanding shares of the 10% Cumulative Preferred Stock,
voting as a class, will be required for any amendment to the articles
of incorporation that will adversely affect the powers, preferences,
privileges, or rights of the shares of the 10% Cumulative Preferred
Stock, except as set forth below. The affirmative vote or consent of
the holders of at least a majority of the outstanding shares of the
10% Cumulative Preferred Stock and any other class of Preferred Stock
ranking on a parity with the 10% Cumulative Preferred Stock as to
dividends or upon liquidation, voting as a single class, will be
required to issue, authorize, or increase the authorized amount of any
class of shares ranking prior to the 10% Cumulative Preferred Stock as
to dividends or upon liquidation or to issue or authorize any
obligation or security convertible into or evidencing a right to
purchase any such security, but the articles of incorporation may be
amended to increase the number of authorized shares of Preferred Stock
ranking on a parity with or junior to the 10% Cumulative Preferred
Stock or to create another class of preferred stock ranking on a
parity with or junior to the 10% Cumulative Preferred Stock without
the vote of the holders of outstanding shares of the 10% Cumulative
Preferred Stock, and
(c) subject to such affirmative vote or consent of the holders of the
outstanding shares of the 10% Cumulative Preferred Stock, the
Corporation may, by resolution of its Board of Directors or as
otherwise permitted by law, from time to time alter or change the
preferences, rights, or powers of the shares of the 10% Cumulative
Preferred Stock. The holders of shares of the 10% Cumulative
Preferred Stock shall not be entitled to participate in any such vote
if, at or prior to the time when any such alteration or change is to
take effect, provision is made for the redemption of all the shares of
10% Cumulative Preferred Stock at the time outstanding. Nothing in
this section shall be taken to require a class vote or consent in
connection with the authorization, designation, increase, or issuance
of any shares of any class or series that rank junior to or on a
parity with the 10% Cumulative Preferred Stock as to dividends and
liquidation rights or in connection with
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the authorization, designation, increase or issuance of any bonds,
mortgages, debentures, or other obligations of the Corporation.
SECTION 6. Conversion. The shares of the 10%
Cumulative Preferred Stock are not convertible into shares of any other class
or series of the capital stock of the Corporation.
SECTION 7. Preemptive Rights. No holder of 10%
Cumulative Preferred Stock shall be entitled as such as a matter of right to
subscribe for or purchase any part of any issue of shares of the Corporation,
of any class whatsoever, or any part of any issue of securities convertible
into shares of the Corporation, of any class whatsoever, and whether issued for
cash, property, services, or otherwise.
PART B
EXPRESS TERMS OF THE PREFERRED STOCK
SECTION 1. Series.
The Preferred Stock may be issued from time to time
in series. All shares of Preferred Stock shall be of equal rank and the
express terms thereof shall be identical, except in respect of the terms that
may be fixed by the Board of Directors as hereinafter provided, and each share
of each series shall be identical with all other shares of such series, except
that in the case of series on which dividends are cumulative the dates from
which dividends are cumulative may vary to reflect differences in the dates of
issue. Subject to the provisions of Sections 2 through 7, inclusive, of this
Part B, which shall apply to all Preferred Stock, the Board of Directors is
hereby authorized to cause shares of Preferred Stock to be issued in one or
more series and with respect to each such series to fix:
(a) The designation of the series, which may be by distinguishing
number, letter, or title.
(b) The authorized number of shares of the series, which number the
Board of Directors may, except to the extent otherwise provided in the
creation of the series, from time to time, increase or decrease, but
not below the number of shares thereof then outstanding.
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(c) The dividend rate or rates (which may be fixed or adjustable) of
the shares of the series.
(d) The dates on which dividends, if declared, shall be payable and,
in the case of series on which dividends are cumulative, the dates
from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if any, for shares of
the series.
(f) The amount, terms, conditions, and manner of operation of any
retirement or sinking fund to be provided for the purchase or
redemption of shares of the series.
(g) The amounts payable on shares of the series in the event of any
liquidation, dissolution, or winding up of the affairs of the
Corporation.
(h) Whether the shares of the series shall be convertible into Common
Shares or shares of any other series or class, and, if so, the
specification of such other class or series, the conversion price or
prices or rate or rates, any adjustment thereof, and all other terms
and conditions upon which such conversion may be made.
(i) The restrictions, if any, upon the issue of any additional shares
of the same series or of any other class or series.
The Board of Directors is authorized to adopt from
time to time amendments to these articles of incorporation fixing, with respect
to each series, the matters described in Clauses (a) through (i), inclusive, of
this Section 1.
SECTION 2. Voting Rights.
(a) The holders of Preferred Stock shall not be entitled to vote upon
matters presented to the shareholders, except as provided in this
Section 2 or as required by law.
(b) If the Corporation shall fail to pay full cumulative dividends on
any series of Preferred Stock or the 10% Cumulative Preferred Stock
(if then outstanding) for six quarterly dividend payment periods,
whether or not consecutive, the number of
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directors will be increased by two, and the holders of all outstanding
series of Preferred Stock and the 10% Cumulative Preferred Stock,
voting as a single class without regard to series, will be entitled to
elect such additional two directors until full cumulative dividends
for all past dividend payment periods on all series of Preferred Stock
and the 10% Cumulative Preferred Stock have been paid or declared and
set apart for payment. Such right to vote separately as a class to
elect directors shall, when vested, be subject, always, to the same
provisions for the vesting of such right to elect directors separately
as a class in the case of future dividend defaults. At any time when
such right to elect directors separately as a class shall have so
vested, the Corporation may, and upon the written request of the
holders of record of not less than twenty percent of the total number
of shares of the Preferred Stock and 10% Cumulative Preferred Stock of
the Corporation then outstanding shall, call a special meeting of
shareholders for the election of such directors. In the case of such
a written request, such special meeting shall be held within ninety
days after the delivery of such request and, in either case, at the
place and upon the notice provided by law and in the Regulations of
the Corporation, provided that the Corporation shall not be required
to call such a special meeting if such request is received less than
120 days before the date fixed for the next ensuing annual meeting of
shareholders of the Corporation. Directors elected as aforesaid shall
serve until the next annual meeting of shareholders of the Corporation
or until their respective successors shall be elected and qualify.
If, prior to the end of the term of any director elected as aforesaid,
a vacancy in the office of such director shall occur during the
continuance of a default in dividends on any series of Preferred Stock
by reason of death, resignation or disability, such vacancy shall be
filled for the unexpired term by the appointment by the remaining
director or directors elected as aforesaid of a new director for the
unexpired term of such former director.
(c) The affirmative vote or consent of the holders of at least
two-thirds of the then outstanding shares of Preferred Stock, given in
person or by proxy, either in writing or at a meeting called for the
purpose at which the holders of Preferred Stock shall vote separately
as a class, shall be necessary to effect any amendment, alteration or
repeal of any of the
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provisions of these articles of incorporation or the regulations of
the Corporation which would be substantially prejudicial to the voting
powers, rights, or preferences of the holders of Preferred Stock (but
so far as the holders of Preferred Stock are concerned, such action
may be effected with such vote or consent); provided, however, that
neither the amendment of these articles of incorporation to authorize
or to increase the authorized or outstanding number of shares of any
class ranking junior to or on a parity with the Preferred Stock, nor
the amendment of the regulations so as to change the number of
directors of the Corporation shall be deemed to be substantially
prejudicial to the voting powers, rights, or preferences of the
holders of Preferred Stock; and provided further that if such
amendment, alteration, or repeal would be substantially prejudicial to
the rights or preferences of one or more but not all then outstanding
series of Preferred Stock, only the affirmative vote or consent of the
holders of at least two-thirds of the then outstanding shares of the
series so affected shall be required;
(d) The affirmative vote or consent of the holders of at least a
majority of the then outstanding shares of Preferred Stock and, if the
holders of 10% Cumulative Preferred Stock are entitled to vote on such
matter pursuant to Section 5 of Part A of this Article IV, the 10%
Cumulative Preferred Stock, given in person or by proxy, either in
writing or at a meeting called for the purpose at which the holders of
Preferred Stock and, if applicable, 10% Cumulative Preferred Stock
shall vote as a single class shall be necessary to effect any one or
more of the following:
(i) The authorization of, or the increase in the authorized
number of, any shares of any class ranking prior to or on a
parity with the Preferred Stock;
(ii) The purchase or redemption for sinking fund purposes or
otherwise of less than all of the then outstanding Preferred
Stock except in accordance with a purchase offer made to all
holders of record of Preferred Stock, unless all dividends on
all Preferred Stock then outstanding for all previous dividend
periods shall have been declared and paid or funds therefor
set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with; or
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(iii) An increase in the authorized number of shares of
Preferred Stock.
SECTION 3. Preemptive Rights.
No holder of Preferred Stock shall be entitled as
such as a matter of right to subscribe for or purchase any part of any issue of
shares of the Corporation, of any class whatsoever, or any part of any issue of
securities convertible into shares of the Corporation, of any class whatsoever,
and whether issued for cash, property, services or otherwise.
SECTION 4. Definitions.
For the purposes of this Part B:
(a) Whenever reference is made to shares "ranking prior to the
Preferred Stock," such reference shall mean and include all shares of
the Corporation in respect of which the rights of the holders thereof
either as to the payment of dividends or as to distribution in the
event of a liquidation, dissolution or winding up of the Corporation
are given preference over the rights of the holders of Preferred
Stock.
(b) Whenever reference is made to shares "on a parity with the
Preferred Stock," such reference shall mean and include all shares of
the Corporation in respect of which the rights of the holders thereof
as to the payment of dividends or as to distributions in the event of
a liquidation, dissolution, or winding up of the Corporation rank on
an equality or parity with the rights of the holders of Preferred
Stock.
(c) Whenever reference is made to shares "ranking junior to the
Preferred Stock," such reference shall mean and include all shares of
the Corporation in respect of which the rights of the holders thereof
as to the payment of dividends and as to distributions in the event of
a liquidation, dissolution or winding up of the Corporation are junior
or subordinate to the rights of the holders of Preferred Stock.
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PART C
EXPRESS TERMS OF COMMON SHARES
SECTION 1. General.
The holders of Common Shares shall be entitled to one
vote for each Common Share held by them, respectively, on each matter properly
submitted to shareholders for their vote, consent, waiver, release or other
action.
SECTION 2. Preemptive Rights.
No holder of Common Shares shall be entitled as such
as a matter of right to subscribe for or purchase any part of any issue of
shares of the Corporation of any class whatsoever, or any part of any issue of
securities convertible into shares of the Corporation, of any class whatsoever,
and whether issued for cash, property, services, or otherwise.
PART D
CUMULATIVE VOTING
No holder of shares of any class of the Corporation
may cumulate his voting power.
ARTICLE V
PURCHASE OF SHARES
Subject to the provisions of Article IV hereof, the
Corporation, by action of its directors, and without action by its
shareholders, may, from time to time, purchase its own shares of any class in
accordance with the provisions of the Ohio General Corporation Law; and such
purchase may be made either in the open market, or at public or private sales,
in such manner and amounts, from such holder or holders of outstanding shares
of the Corporation and at such price as the directors shall, from time to time,
determine.
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ARTICLE VI
VOTING
Any proposal which, under applicable law, requires the approval of
holders of shares of the Corporation:
(1) to adopt an amendment to these articles of incorporation (which
term includes amended articles of incorporation),
(2) to sell, exchange, transfer, or otherwise dispose of all, or
substantially all, the assets of the Corporation,
(3) to effect a merger or consolidation involving the Corporation,
(4) to effect a combination or majority share acquisition (as such
terms are defined by the laws of the State of Ohio), or
(5) to dissolve, liquidate, or wind up the affairs of the Corporation,
may be authorized and approved by the affirmative vote of the holders of shares
entitling them to exercise a majority of the voting power of the Corporation on
such proposal and, if a proposal upon which holders of shares of a particular
class or classes are required to vote separately as a class by other provisions
of these articles of incorporation or law, by the affirmative vote of the
holders of shares entitling them to exercise a majority of the voting power of
such class or classes, except as otherwise provided in Section 5 of Part A and
Section 2 of Part B of Article IV with respect to the 10% Cumulative Preferred
Stock and the Preferred Stock of the Corporation. Notwithstanding the
foregoing, the provisions of this Article VI shall not reduce the vote of
shareholders required to approve a transaction which requires shareholder
approval under Chapter 1704 of the Ohio Revised Code.
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ARTICLE VII
OPT-OUT OF CONTROL SHARE ACQUISITIONS STATUTE
Section 1701.831 of the Ohio Revised Code shall not
apply to control share acquisitions of shares of the Corporation.
ARTICLE VIII
AMENDED AND RESTATED ARTICLES
These Amended and Restated Articles of Incorporation
of KeyCorp supersede the Amended and Restated Articles of Incorporation
of Society Corporation filed with the Secretary of State of Ohio on September
24, 1993.
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