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As filed with the Securities and Exchange Commission on October 23, 1998
Registration No. 333-61025
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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POST-EFFECTIVE AMENDMENT NO.1
TO FORM S-4
ON
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KEYCORP
(Exact Name of Registrant as Specified in Its Charter)
OHIO
(State or Other Jurisdiction of Incorporation or Organization)
34-6542451
(I.R.S. Employer Identification Number)
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114
(Address of Principal Executive Offices)
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McDONALD & COMPANY INVESTMENTS, INC. 1995 STOCK OPTION PLAN
FOR NON-OFFICER DIRECTORS
McDONALD & COMPANY INVESTMENTS, INC. 1995 KEY EMPLOYEES
STOCK OPTION PLAN
McDONALD & COMPANY INVESTMENTS, INC. STOCK OPTION PLAN
(Full Title of the Plans)
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DANIEL R. STOLZER
VICE PRESIDENT AND ASSOCIATE GENERAL COUNSEL
KEYCORP
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114
(Name and Address of Agent For Service)
(216) 689-4110
(Telephone Number, Including Area Code, of Agent for Service)
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As of the date of this Registration Statement, KeyCorp, an Ohio
corporation, acquires McDonald & Company Investments, Inc., an Ohio
corporation ("McDonald"). This Registration Statement on Form S-8 has the
effect of post-effective amendment number 1 to the Registration Statement
on Form S-4 filed by KeyCorp with the Securities and Exchange Commission
(the "SEC") on August 7, 1998, SEC file number 333-61025, effective as of
August 13, 1998 ("S-4"). All KeyCorp Common Shares issued in connection
with the acquisition of McDonald, including KeyCorp Common Shares to be
offered for McDonald options outstanding as of the date of the
acquisition, have been registered with the SEC pursuant to S-4.
Accordingly, no registration fee is due in connection with this filing.
KeyCorp will pay a nominal fee of $1.00 for filing of this Registration
Statement on Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
As specified by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"), the documents containing the information specified
in Part I of this Registration Statement on Form S-8 (the "Registration
Statement") will be sent or given to optionees who, prior to KeyCorp's
acquisition of McDonald & Company Investments, Inc., received options under
the various McDonald & Company Investments, Inc. plans listed on the facing
page of this Registration Statement. Such documents and the documents
incorporated by reference herein pursuant to Item 3 of Part II hereof,
taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which are on file with the SEC, are incorporated
herein by reference:
1. KeyCorp's Annual Report on Form 10-K for the year ended December
31, 1997, KeyCorp Quarterly Report on Form 10-Q for the quarter ended March
31, 1998, and for the quarter ended June 30, 1998.
2. KeyCorp's Current Reports on Form 8-K, filed on (a) January 21,
1998, (b) March 6, 1998, (c) April 17, 1998, (d) June 15, 1998, (e) July
17, 1998, (f) September 23, 1998, and (g) October 16, 1998.
3. The description of (a) KeyCorp's Common Shares, with a par value of
$1 each (the "Common Shares"), filed with the SEC in the Registration
Statement on Form 8-A dated July 31, 1992, as amended by Forms 8-A/A filed
on October 15, 1993, February 25, 1994, and June 19, 1997, respectively,
registering the KeyCorp Common Shares under Section 12(b) of the Securities
Exchange Act of 1934 (the "Exchange Act"), and (b) the Rights contained in
the Registration Statement on Form 8-A filed on June 19, 1997, as amended
by Form 8-A/A filed on March 6, 1998.
4. All documents filed by KeyCorp pursuant to Section 13(a), 13(c),
14, or 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective
amendment, which indicates that all of the securities offered hereby have
been sold
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or which deregisters all such securities remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be
part hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Ohio law, Ohio corporations are authorized to indemnify directors,
officers, employees, and agents ("Covered Persons") within prescribed
limits and must indemnify them under certain circumstances. Ohio law
permits a corporation to indemnify a Covered Person against expenses,
judgments, fines, and settlements reasonably incurred in a nonderivative
suit, and against expenses reasonably incurred in a derivative suit, if the
Covered Person acted in good faith and in a manner reasonably believed to
be in or not opposed to the best interest of the corporation. In addition,
Ohio law permits a corporation to indemnify a Covered Person in a criminal
action or proceeding, other than in a derivative suit, if the person had no
reasonable cause to believe his or her conduct was unlawful.
Unless ordered by a court, no indemnification of expenses in a derivative
suit is authorized by Ohio law if the Covered Person is ultimately adjudged
to be liable for negligence or misconduct in the performance of his or her
duty to the corporation. However, if a Covered Person is successful on the
merits or in defense on a matter, indemnification of expenses is mandatory.
In addition, under Ohio law, a Director's expenses shall be paid by the
corporation as they are incurred, provided the Director agrees to
reasonably cooperate with the corporation and to repay the amounts advanced
if it is proved by clear and convincing evidence that the Director's action
or failure to act was done with reckless disregard for the best interests
of the corporation.
Under Ohio law, a Director is not liable for monetary damages unless it is
proved by clear and convincing evidence that the Director's action or
failure to act was undertaken with deliberate intent to cause injury to the
corporation or with reckless disregard for the best interests of the
corporation. There is, however, no comparable provision limiting the
liability of officers, employees, or agents of a corporation. The statutory
right to indemnification is not exclusive in Ohio, and is in addition to
any other rights granted to persons seeking indemnification.
The Amended and Restated Regulations of KeyCorp provide that KeyCorp shall
indemnify to the fullest extent permitted by the Ohio General Corporation
Law any person made or threatened to be made a party to any 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
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KeyCorp or of any other bank, corporation, partnership, trust, or other
enterprise for which he or she was serving as a director, officer, or
employee at the request of KeyCorp.
KeyCorp is a party to Employment Agreements with certain of its executive
officers and is also a party to Change of Control Agreements with certain
executive officers. Generally, pursuant to the Employment Agreements and,
after a change of control (as defined), pursuant to each Change of Control
Agreement, KeyCorp has agreed to (i) indemnify the executive officer, to
the full extent permitted or authorized by the Ohio General Corporation
Law, if the executive officer is made or threatened to be made a party to
any threatened, pending, or completed action, suit, or proceeding by reason
of the executive officer's serving as an employee, officer, or director of
KeyCorp and/or any of its subsidiaries or is or was serving at the request
of KeyCorp or any of its subsidiaries as a director, trustee, officer, or
employee of a bank, corporation, partnership, joint venture, trust or other
enterprise, and (ii) advance expenses incurred by the executive officer in
defending any action, suit, or proceeding commenced or threatened for any
action or failure to act as an employee, officer, or director of KeyCorp or
any of its subsidiaries. The expenses so advanced to officers and employees
of KeyCorp shall be repaid if it is ultimately determined that such
executive officer is not entitled to be indemnified. With respect to
Directors of KeyCorp, the amount of expenses paid as incurred shall be
repaid if it is determined that action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury or reckless
disregard for the best interests of KeyCorp or any of its subsidiaries.
The indemnification provided under the Employment Agreements and each of
the Change of Control Agreements shall continue after the executive officer
has ceased to be an executive officer, and shall inure to the benefit of
the heirs, executors, and administrators of the executive officer.
Under the terms of KeyCorp's directors' and officers' liability and
reimbursement insurance policy, directors and officers of KeyCorp are
insured against certain liabilities, including liabilities arising under
the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit Index
on page 6, and are incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of a prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that clauses (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the SEC by KeyCorp
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
KeyCorp's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of
KeyCorp pursuant to the foregoing provisions, or otherwise, KeyCorp has
been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the
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event that a claim for indemnification against such liabilities (other than
the payment by KeyCorp of expenses incurred or paid by a director, officer,
or controlling person of KeyCorp in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, KeyCorp will,
unless in the opinion of its counsel the matter has been settled by the
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, KeyCorp certifies that
it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Cleveland, State of Ohio, on this 23d day of October, 1998.
KEYCORP
By: /s/ Daniel R. Stolzer
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Daniel R. Stolzer
Vice President and
Associate General Counsel
KEYCORP
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
NO.
3(a) Amended and Restated Articles of Incorporation of KeyCorp,
filed as Exhibit 3(a) to Form S-4 filed on August 7, 1998,
and incorporated herein by reference.
3(b) Amended and Restated Regulations of KeyCorp, effective May 15,
1997, and filed as Exhibit 2 to Form 8-A/A filed on June 19,
1997, and incorporated herein by reference.
4. Restated Rights Agreement, dated as of May 15, 1997, between
KeyCorp and KeyBank National Association, as Rights Agent,
filed as Exhibit 1 to Form 8-A dated June 19, 1997, and
amended by Amendment No. 1 on Form 8-A/A filed on March 6,
1998. The Restated Rights Agreement, as amended, is
incorporated herein by reference.
5. Opinion of Daniel R. Stolzer, Esq., as to validity of the
Common Shares to be issued by KeyCorp filed as Exhibit 5 to
the Registration Statement on Form S-4
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(Registration Number 333-61025) filed with the SEC on August
7, 1998, and incorporated herein by reference.
15. Acknowledgment Letter of Ernst & Young LLP.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Daniel R. Stolzer, Esq., included in Exhibit 5 to
the Registration Statement on Form S-4 (Registration Number
333-61025) filed with the SEC on August 7, 1998, and
incorporated herein by reference.
24. Powers of attorney filed as Exhibit 24 to the Registration
Statement on Form S-4 (Registration Number 333-61025) filed
with the SEC on August 7, 1998.
KeyCorp hereby agrees to furnish the Securities and Exchange
Commission, upon request, copies of outstanding instruments, including
indentures, which define the rights of long-term debt security holders.
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Exhibit 15
ACKNOWLEDGMENT LETTER OF INDEPENDENT AUDITORS
Shareholders and Board of Directors
KeyCorp
We are aware of the incorporation by reference in the Registration Statement
(Form S-8) of KeyCorp pertaining to the McDonald & Company Investments, Inc.
1995 Stock Option Plan For Non-officer Directors, McDonald & Company
Investments, Inc. 1995 Key Employees Stock Option Plan and McDonald & Company
Investments, Inc. Stock Option Plan of our reports dated April 14, 1998, and
July 14, 1998, relating to the unaudited condensed consolidated interim
financial statements of KeyCorp that are included in its Forms 10-Q for the
quarters ended March 31, 1998, and June 30, 1998.
Pursuant to Rule 436(c) of the Securities Act of 1933, our reports are not a
part of the Registration Statements prepared or certified by accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
Cleveland, Ohio
October 20, 1998
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Exhibit 23a
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the McDonald & Company Investments, Inc. 1995 Stock Option
Plan For Non-officer Directors, McDonald & Company Investments, Inc. 1995 Key
Employees Stock Option Plan and McDonald & Company Investments, Inc. Stock
Option Plan of our report dated January 13, 1998, with respect to the
consolidated financial statements of KeyCorp incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Cleveland, Ohio
October 20, 1998
