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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A/A
Amendment No. 3
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KEYCORP
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(Exact name of registrant as specified in its charter)
Ohio 34-6542451
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
127 Public Square, Cleveland, Ohio 44114-1306
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Shares, with a New York Stock Exchange
par value of $1 each
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
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"). When originally
issued, each share of Class A Preferred Stock was deposited under a Deposit
Agreement, dated July 27, 1991 (the "Deposit Agreement"), between the
Registrant, Society National Bank (renamed "KeyBank National Association" in
1996), as successor depositary (the "Depositary"), and the holders of Depositary
Receipts issued by the Depositary thereunder. On June 30, 1996, the Registrant
redeemed all outstanding shares of Class A Preferred Stock. Consequently, there
are no shares of Class A Preferred Stock currently issued and outstanding and no
Depositary Receipts continue to remain issued under the Deposit Agreement.
On May 15, 1997, the shareholders of the Registrant adopted
an amendment to, and an amendment and restatement of, the Registrant's
Regulations (as so amended and restated, the "Regulations"). The following
summary of the material terms of the Common Shares reflects the application of
the Regulations, as well as the Registrant's Amended and Restated Articles of
Incorporation (the "Articles of Incorporation") and provisions of the Ohio
General Corporation Law. The summary does not purport to be complete and is
qualified in its entirety by reference to the Articles of Incorporation, the
Regulations 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 Articles of Incorporation, any proposal which,
under applicable law, requires the approval of the shareholders of the
Registrant:
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(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 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 provide that the Regulations may be amended,
repealed, or altered or new regulations may be adopted (i) at a meeting of
shareholders 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,
provided, however, if such amendment, repeal, alteration or adoption is
recommended by at least two-thirds of the entire authorized Board of Directors,
the shareholder vote required shall be 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 (ii) 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 provide that the number of directors shall be
between 17 and 20, divided into three classes. As of May 15, 1997, the Board of
Directors consisted of 20 members divided into three classes as follows: one
class of six directors whose terms will expire at the 1998 annual meeting of
shareholders and two classes of seven directors whose terms will expire at the
1999 and 2000 annual meetings of shareholders, respectively. The Board of
Directors may change the size of the Board of Directors within the foregoing
range by the affirmative vote of a majority 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 a majority 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. If the
Board of Directors or the shareholders change the number of directors as
provided for in this paragraph, 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
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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 as set forth below. 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 as set forth below.
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 the Regulations as set forth above, (ii) pursuant to an agreement of
merger or consolidation approved 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 Registrant on such proposal,
or (iii) as provided in the immediately preceding paragraph or in the next
following paragraph.
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.
Removal of Directors and Filling Vacancies
The Regulations provide that the Board of Directors may
remove any director and thereby create a vacancy on the Board: (a) if by order
of court the director has been found to be of unsound mind or if the director is
adjudicated a bankrupt or (b) if within 60 days from the date of his or her
election the director does not qualify by accepting in writing his or her
election to such office or by acting at a meeting of directors.
All of the directors, or all of the directors of a particular
class, or any individual director, may only be removed from office 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 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 provide that any vacancies on the Board of
Directors resulting from death, resignation, removal, or other cause may be
filled by the affirmative vote of a majority 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 may be filled by the
affirmative vote of a majority 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
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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 a majority 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.
Dividend and Liquidation Rights
Subject to any dividend and liquidation preferences
applicable to any shares of 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.
Certain Board of Director Super-Majority Vote Requirements for Extraordinary
Transactions
The affirmative vote of at least two-thirds of the entire
authorized Board of Directors of the Registrant is required for the approval or
recommendation of any of the following transactions: (a) any merger or
consolidation of the Registrant (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 transaction as a result of which any person or
entity will become an interested shareholder, (c) any merger or consolidation
involving the Registrant with or into any other corporation if such other
corporation, on a consolidated basis, has assets with an aggregate book value
equal to 50% or more of the aggregate book value of the consolidated assets of
the Registrant, (d) any liquidation or dissolution of the Registrant, (e) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition to or
with an interested shareholder of assets of the Registrant having an aggregate
book value equal to 10% or more of the aggregate book value of all the
consolidated assets of the Registrant, (f) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition to or with any person or entity of assets
of the Registrant having an aggregate book value equal to 25% or more of the
aggregate book value of all the consolidated assets of the Registrant, (g) any
transaction resulting in the issuance or transfer by the Registrant to any
person or entity of more than 15% of the voting stock of the Registrant
(determined prior to the issuance or transfer), and (h) certain other
transactions involving an interested shareholder which result in an increase in
the proportionate amount of stock of the Registrant owned by such shareholder
or in the receipt by such shareholder of the
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benefit of certain financial benefits (such as loans, guarantees or pledges)
provided through the Registrant (other than proportionately as a shareholder 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.
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Item 2. Exhibits
The Registrant's Common Shares are listed on the New York Stock Exchange.
Accordingly, the following exhibits required in accordance with Part I of the
Instructions as to Exhibits are filed herewith and incorporated herein by
reference:
Exhibit No. Description
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1 Form of Certificate evidencing ownership of
Common Shares
2 Amended and Restated Regulations of the
Registrant, adopted May 15, 1997
3 Amended and Restated Articles of
Incorporation of the Registrant*
4 Restated Rights Agreement, dated as of May
15, 1997, between KeyCorp and KeyBank
National Association, as Rights Agent**
* Incorporated by reference from Exhibit 7 to Registrant's
Form 8-A/A filed with the Securities and Exchange Commission
on February 25, 1994.
** Incorporated by reference from Exhibit 1 to Registrant's
Form 8-A filed with the Securities and Exchange Commission on
June 19, 1997.
SIGNATURE
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.
KEYCORP
Date: June 19, 1997 By: /s/ Thomas C. Stevens
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Thomas C. Stevens
Executive Vice President, General
Counsel and Secretary
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EXHIBIT 1
NUMBER SHARES
C 58814
COMMON SHARES COMMON SHARES
INCORPORATED UNDER THE LAWS CUSIP 493267 10 8
OF THE STATE OF OHIO
SEE REVERSE FOR CERTAIN DEFINITIONS
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THIS CERTIFICATE IS TRANSFERABLE
EITHER IN CHICAGO, IL OR IN NEW YORK, NY
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[KEYCORP LOGO]
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 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
SECRETARY CHAIRMAN OF THE BOARD
[KEYCORP SEAL]
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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 the right of Act___________________
survivorship and not as tenants (Single)
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 OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(Please print or typewrite name and address including postal zip code of
assignee)
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of the Shares
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represented by the within Certificate and does hereby irrevocably constitute
and appoint
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Attorney to transfer the said shares on the books of the within named
Corporation, with full power of substitution in the premises.
Dated 19
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NOTICE: The signature to 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 Restated Rights Agreement between KeyCorp and KeyBank National
Association, Rights Agent, dated as of May 15, 1997, as amended from time to
time (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 are or were beneficially owned by an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as these
terms are defined in the Rights Agreement) and any subsequent holder may become
null and void.
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EXHIBIT 2
AMENDED AND RESTATED
REGULATIONS
OF
KEYCORP
(Effective May 15, 1997)
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 (i) 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 (ii) 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. 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 Board of Directors acting without a meeting, or (iv)
persons holding 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 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. 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.
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Section 5. Quorum. Except as otherwise required by law, 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
meeting of shareholders, proposals by shareholders and nominations for election
as directors by shareholders shall only 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 2(b) of Article II in the case of
nominations 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 2(b) 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 2(b) of Article II, as applicable) has not been given. No
proposals by shareholders or nominations for election as director shall be
considered at any special meeting of shareholders unless such special meeting
was called for the purpose of considering such proposal or nomination. If,
pursuant to Rule 14a-8 promulgated under the Securities Exchange Act of 1934
(including as such Rule 14a-8 may be from time to time amended or any rule
promulgated in place thereof or covering the same subject matter; collectively
being herein referred to as "Rule 14a-8") the Corporation is required to set
forth a proposal of a shareholder in its proxy statement, the provisions of Rule
14a-8, to the extent applicable, shall prevail over any conflicting provisions
of this Section 7 with respect to that shareholder proposal.
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 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
11 of this Article II.
As of the conclusion of the 1997 annual meeting of shareholders of the
Corporation, the Board of Directors shall consist of 20 members, divided into
three classes as follows: one class of six directors whose term will expire at
the 1998 annual meeting of shareholders, and two classes of seven directors
whose terms will expire at the 1999 and 2000 annual meetings of shareholders,
respectively. The Board of Directors or the shareholders may from time to time
fix or change the
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size of the Board of Directors to a total number of no fewer than 17 directors
and no more than 20 directors (the size of the Board as from time to time so
established being herein referred to as the "entire authorized Board"). The
Board of Directors may, subject to the limitation contained in the immediately
preceding sentence regarding the number of directors, fix or change the number
of directors by the affirmative vote of a majority of the entire authorized
Board. The shareholders may, subject to the limitation contained in the second
sentence of this paragraph regarding the number of directors, 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 a majority 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 as
provided above in this paragraph, 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 Section 12 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 Section 12
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 approved
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 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.
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Section 2. 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) by the affirmative vote of a majority of the directors
then in office, and
(b) 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 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.
No person shall be eligible for election as a director unless nominated in
compliance with the provisions of this Section 2.
Section 3. Quorum, Adjournments, and Manner of Acting. Except as
otherwise required 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 required 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 any contrary provisions of these Regulations, the
affirmative vote of at least two-thirds of the entire authorized Board of
Directors shall be required for the approval or recommendation 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 (which term, as
used in this paragraph, includes, in addition to a corporation, a limited
liability company, partnership, business trust or other entity) if the merger or
consolidation is caused by any interested shareholder, (b) any transaction as a
result of which any person or entity will become an interested shareholder, (c)
any merger or consolidation involving the Corporation with or into any other
corporation if such other corporation,
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taken on a consolidated basis with its "parent", if any, and its and its
parent's "subsidiaries" (as both terms are defined by Rule 12b-2 under the
Securities Exchange Act of 1934, as amended), has 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 or entity 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 to any person or entity of voting stock
of the Corporation in an amount greater than 15% of the outstanding voting stock
of the Corporation before giving effect to the issuance or transfer, (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, and (i) any transaction which results in the 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 4. 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 5. 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 6. 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 7. 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 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 8. 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 9. 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, which writing or writings shall be filed with or entered upon
the records of the Corporation.
Section 10. 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.
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Section 11. 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 the
director has been found to be of unsound mind or if the director is adjudicated
a bankrupt or (b) if within 60 days from the date of such director's election
the director does not qualify by accepting in writing the 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 only be removed from office 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 2 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 12. Vacancies. Any vacancies on the Board of Directors
resulting from death, resignation, removal, or other cause may be filled by the
affirmative vote of a majority of the 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 may be filled by the affirmative vote of a
majority 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 a majority of the directors then in office. Any director
elected in accordance with the three preceding sentences of this Section 12
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. The provisions of
this Section 12 shall not restrict the rights of holders of any 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.
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ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
Section 1. Executive Committee. The Board of Directors may, by
resolution adopted by the affirmative vote of a majority 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. 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 a
majority 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. Other Committees. The Board of Directors may, by resolution
adopted by the affirmative vote of a majority 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 a majority 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 3. 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 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.
ARTICLE IV
OFFICERS
Section 1. Election and Term of Office. The officers of the Corporation
shall consist of a President, a Secretary, a Treasurer, and such other officers
(including, without limitation, if so desired by the Board of Directors, a
Chairman of the Board, a Chief Executive Officer, a Chief Operating Officer, a
Chief Financial Officer, and one or more Vice Presidents) and assistant
officers,
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all with such titles, authorities, and duties as the Board of Directors may from
time to time determine. The officers shall be elected by the Board of Directors.
The Chairman of the Board, if one is elected, shall be a director. Any two or
more offices may be held by the same person, but 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 Regulations to be executed, acknowledged, or verified by two or more
officers. Unless the directors expressly elect an officer for a longer or
shorter term, each officer shall hold office until the next annual organization
meeting of the directors following election of the officer (or, if neither such
officer nor a successor is elected at such annual organization meeting, until
such officer or such officer's successor is elected) or until the earlier
resignation, removal from office, or death of the officer.
Section 2. 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. Unless otherwise determined by the Board
of Directors, the Chairman of the Board, if any, shall preside at all meetings
of the Board of Directors and at all meetings of the shareholders. In the event
a Chairman of the Board has not been elected or is otherwise absent, the
President (or such other officer designated by the Board of Directors) shall
preside at such meetings.
Section 3. Removal. Any officer may at any time be removed, either with
or without cause, by the Board of Directors or any authorized committee thereof
or by any superior officer upon whom such power may be conferred by the Board or
any authorized committee thereof; provided however, that the removal of the most
senior (in authority) officer of the Corporation shall require the affirmative
vote of at least a majority of the entire authorized Board. The removal of any
officer shall be without prejudice to the contract rights, if any, of such
officer.
Section 4. Resignation. Any officer may resign at any time by giving
notice to the Board of Directors, the Chairman of the Board, 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 5. Vacancies. A vacancy in any office because of death,
retirement, resignation, removal, or any other cause may be filled by the Board
of Directors.
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 or she 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 or she 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 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
or her 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
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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 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 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.
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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.
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ARTICLE X
AMENDMENTS
These Regulations may only be amended, repealed, or altered or new
regulations may only be adopted (i) at a meeting of shareholders, 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,
provided, however, if such amendment, repeal, alteration, or adoption is
recommended by at least two-thirds of the entire authorized Board of Directors,
the shareholder vote required shall be 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 (ii) 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
(or portion thereof) is deemed to be unenforceable or invalid under applicable
law, then it is the intent that such otherwise unenforceable or invalid
provision (or portion thereof) be enforced and valid to the maximum extent
permitted by applicable law. The invalidity or unenforceability of any provision
(or portion thereof) of these Regulations shall not invalidate or render
unenforceable any other provision (or the balance of the otherwise enforceable
or valid provision) of these Regulations, as each provision (and portion
thereof) is intended to be severable.
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