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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): SEPTEMBER 10, 1998
FIRSTMERIT CORPORATION
(Exact name of registrant as specified in its charter)
OHIO 0-10161 34-1339938
(State or other jurisdiction of (Commission (IRS employer identification
incorporation or organization) file number) number)
III CASCADE PLAZA, 7TH FLOOR AKRON, OHIO 44308 (330) 384-8000
(Address of Principal Executive Offices) (Zip Code) (Telephone Number)
Copy to:
KEVIN C. O'NEIL
BROUSE & MCDOWELL
500 First National Tower
Akron, Ohio 44308-1471
(330) 434-5207
E-Mail: KONeil@Brouse.Com
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ITEM 5. OTHER EVENTS.
The following amends and restates the description of FirstMerit
Corporation's common and preferred stock:
DESCRIPTION OF FIRSTMERIT CORPORATION CAPITAL STOCK
FIRSTMERIT COMMON SHARES
The FirstMerit Corporation Amended and Restated Articles of
Incorporation, as amended ("FirstMerit Articles"), has authorized for issuance
160,000,000 shares of FirstMerit common stock, without par value ("Common
Stock"). These shares may be issued and sold without further shareholder action
provided that the issuance and sale is made in compliance with the FirstMerit
Articles and the FirstMerit Amended and Restated Code of Regulations
("FirstMerit Regulations") (collectively, the "FirstMerit Corporate Governance
Documents") and the Ohio General Corporation Laws ("OGCL"). Each share of Common
Stock is accompanied by one FirstMerit Right (defined below) pursuant to the
FirstMerit Rights Agreement (defined below).
Each share of Common Stock is entitled to (a) dividends when and as
declared by the directors, but after payment of dividends to any FirstMerit
preferred stock that may hereafter be issued, (b) to one vote per share on each
matter properly submitted to shareholders for their vote, and (c) to participate
ratably in the net assets of FirstMerit in the event of liquidation, after any
FirstMerit preferred stock that may hereafter be issued.
Holders of Common Stock have no preemptive rights for the purchase of
additional shares of any class of FirstMerit capital stock, nor do they have the
right to cumulate their voting power.
FIRSTMERIT PREFERRED STOCK
The FirstMerit Articles has authorized 7,000,000 shares of preferred
stock, without par value (" Preferred Stock"). FirstMerit has created a class
of preferred stock entitled the "Series A Preferred Stock" and has currently
designated 700,000 shares for issuance thereunder. The Series A Preferred Stock
was created pursuant to the FirstMerit's Rights Agreement. The remaining
6,300,000 shares of Preferred Stock may be issued and sold without further
shareholder action provided that the issuance and sale is made in compliance
with the FirstMerit Corporate Governance Documents and the OGCL.
Unless otherwise designated, the holders of Preferred Stock are entitled
to one vote per share on matters on which they are entitled to vote, and the
other terms thereof may be fixed by FirstMerit's Board of Directors, including
dividend rate, liquidation price, redemption price, sinking fund provisions,
conversion rights, and restrictions on issuance of shares of the same series or
any other class or series as may be determined by the directors. Unless
otherwise designated, as to dividend, redemption, and liquidation rights, each
series of Preferred Stock will be senior to Common Stock.
TERMS OF COMMON STOCK
OVERVIEW
FirstMerit is a corporation organized under Ohio law, and governed by
the OGCL, the FirstMerit Corporate Governance Documents and the FirstMerit
Rights Agreement. This summary is qualified in its entirety by reference to the
OGCL, the FirstMerit Corporate Governance Documents and the FirstMerit Rights
Agreement.
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VOTING RIGHTS
CUMULATIVE VOTING AND PREEMPTIVE RIGHTS. Each holder of Common
Stock has the right to cast one vote for each share owned on all matters
submitted to a vote of shareholders. No holder of shares of Common Stock
of FirstMerit is entitled to the right of cumulative voting in the
election of directors. The FirstMerit Articles provide that no holder of
shares of any class of capital stock of FirstMerit is entitled to
preemptive rights.
DIRECTOR NOMINATIONS. Any shareholder of FirstMerit who
determines to nominate a person for election as a director must deliver
written notice to the Secretary of FirstMerit not later than (a) with
respect to an election to be held at an Special Meeting of Shareholders
for the election of directors, 90 days in advance of such meeting, and
(b) with respect to such an election to be held at an Special Meeting of
Shareholders, the close of business on the seventh day following the
date on which notice of such meeting is first given to shareholders. The
notice must set forth specific information regarding the nominating
shareholder and nominee, and must be accompanied by a consent of the
nominee to serve as a director if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made
in compliance with this procedure.
SPECIAL MEETINGS. A special meeting of the shareholders of
FirstMerit can be called by the President, by the Board of Directors
acting at a meeting, by a majority of the Board when not in a meeting,
or by shareholder(s) owning one-half or more of the outstanding shares
of Common Stock.
ACTION WITHOUT A MEETING. The OGCL law provides that any
shareholder action to be taken by written consent without a meeting,
must be done unanimously.
MERGERS, CONSOLIDATIONS, DISSOLUTIONS, COMBINATIONS, AND OTHER
TRANSACTIONS. Subject to the provisions discussed in "Anti-Takeover
Statutes" below, Ohio law requires a merger, consolidation, dissolution,
disposition of all or substantially all of a corporation's assets, and a
"majority share acquisition" or "combination" involving issuance of
shares with one-sixth or more of the voting power of the corporation be
adopted by the affirmative vote of the holders of shares entitled to
exercise at least two-thirds of the voting power of the corporation on
such proposal, unless the articles of incorporation specify a different
proportion (but not less than a majority). Adoption by the affirmative
vote of the holders of two-thirds of any class of shares, unless
otherwise provided in the articles, may also be required if the rights
of holders of that class are affected in certain respects by the merger
or consolidation. Except for the "Fair Price and Supermajority Vote
Provisions" discussed below, the FirstMerit Articles do not modify such
voting requirements.
FAIR PRICE AND SUPERMAJORITY VOTE PROVISIONS. Article Seventh
of the FirstMerit Articles requires that a merger or consolidation of
FirstMerit into or with a corporation, person, or entity that is the
beneficial owner of 10% or more of the issued and outstanding shares of
a class of FirstMerit capital stock ("Interested Party"), or the sale,
lease or other disposition of all or substantially all of the assets of
FirstMerit to an Interested Party, requires the approval of 80% of the
outstanding voting shares of each class of FirstMerit stock entitled to
vote as a class. This supermajority vote requirement is waived in the
event the transaction has been approved (i) by the Board of Directors
prior to the time the Interested Party beneficially owns 10% or more of
the outstanding capital stock of FirstMerit, or (ii) at any time before
its consummation by two-thirds vote of the total members of the
FirstMerit Board of Directors and a majority of the directors who either
were appointed prior to the time the party beneficially owned four
percent or more of an outstanding class of capital stock or were
recommended to succeed such a director by a majority of such directors;
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provided, that the transaction is structured in such a manner that the
price to be paid by the Interested Party is fair to all shareholders of
FirstMerit. A FirstMerit shareholder must receive a price equal to the
highest price per share previously paid to a shareholder by the
Interested Party for a share of FirstMerit capital stock of the same
class. If that supermajority vote requirement is waived, the transaction
may be approved by the holders of at least two-thirds of the outstanding
capital stock.
AMENDMENT TO CORPORATE GOVERNANCE DOCUMENTS
The FirstMerit Articles presently require that two-thirds of the voting
power of FirstMerit approve any amendment to the Articles, except that (i) with
regard to FirstMerit's Series A Preferred Stock (no shares of which are
presently issued or outstanding), any amendment to the FirstMerit Articles that
would materially alter or change the powers, preferences, or special rights of
such Series A Preferred Stock so as to affect them adversely would have to be
approved by at least a majority vote of the holders of such shares, voting
together as a single class, and (ii) with regard to Article Seventh of the
FirstMerit Articles, certain business combinations require a vote of 80% of the
voting power of FirstMerit, unless the amendment is approved by 75% of the Board
and by a majority of the Continuing Directors, then by two-thirds of the voting
power.
Directors may not amend the code of regulations of an Ohio corporation.
The Regulations of FirstMerit provide for amendment by shareholders holding a
majority of the voting power at a meeting (although Ohio law requires that all
amendments by written action of the shareholders without a meeting must be
approved unanimously by the shareholders entitled to vote thereon). In addition,
any amendments regarding the calling of special meetings of shareholders,
classification of directors, nomination of or removal of directors, or amendment
to the FirstMerit Regulations, must be approved by shareholders holding at least
two-thirds of the voting power of FirstMerit.
DIRECTORS
NUMBER; CLASSIFICATION. The FirstMerit Regulations presently
provide that the number of directors shall not be greater than 24,
divided into three classes. The shareholders of FirstMerit at the 1995
Special Meeting of Shareholders fixed the number of Directors at 18. The
respective terms of the classes are staggered so that the term of one
class expires each year, at which time members of that class are elected
to a three-year term.
REMOVAL; VACANCY. The FirstMerit Regulations provide that
FirstMerit's shareholders may remove a director for good cause by a vote
of two-thirds of the capital stock entitled to vote for directors. The
FirstMerit Regulations provide that vacancies in FirstMerit's Board of
Directors, whether occurring by reason of a resignation or otherwise,
may be filled by the FirstMerit Board acting by a vote of a majority of
directors then in office, even if less than a quorum.
INDEMNIFICATION, INSURANCE AND LIMITATION OF DIRECTOR
LIABILITY. Under Ohio law, Ohio corporations are authorized to indemnify
directors, officers, employees, and agents within prescribed limits and
must indemnify them under certain circumstances. Ohio law does not
provide statutory authorization for a corporation to indemnify
directors, officers, employees, and agents for settlements, fines, or
judgments in the context of derivative suits. It provides, however, that
directors (but not officers, employees, and agents) are entitled to
mandatory advancement of expenses, including attorneys' fees, incurred
in defending any action, including derivative actions, brought against
the director, provided the director agrees to cooperate with the
corporation concerning the matter and to repay the amount advanced if it
is proved by clear and convincing evidence that his act or failure to
act was done with deliberate intent to cause injury to the corporation
or with reckless disregard for the corporation's best interests.
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Ohio law does not authorize payment of expenses or judgments
to a director, officer, employee, or agent after a finding of negligence
or misconduct in a derivative suit absent a court order. Indemnification
is required, however, to the extent such person succeeds on the merits.
In all other cases, if a director, officer, employee, or agent acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, indemnification is
discretionary except as otherwise provided by a corporation's articles,
code of regulations, or by contract and except with respect to the
advancement of expenses of directors.
Under Ohio law, a director is not liable for monetary damages
unless it is proved by clear and convincing evidence that his 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 Ohio
corporations may, among other things, procure insurance for such
persons.
The FirstMerit Articles provide that FirstMerit may indemnify
to the fullest extent permitted by law any person made or threatened to
be made a party to any action, suit, or proceeding by reason of the fact
that he is or was a director, officer, employee or agent of FirstMerit,
or of any other corporation or organization for which he was serving as
a director, officer, employee or agent at the request of FirstMerit.
FirstMerit has entered into Indemnification Agreements with
each of its directors and executive officers and has acquired insurance
for its obligations to provide indemnification to their officers and
directors.
SHAREHOLDER RIGHTS PLAN
Pursuant to the terms of the Amended and Restated FirstMerit Corporation
Shareholder Rights Plan dated May 20, 1998 ("Rights Agreement"), between
FirstMerit and FirstMerit Bank, as rights agent, a dividend of one preferred
share purchase right (a "Right") for each outstanding share of Common Stock was
declared by the FirstMerit Board of Directors. Each Right entitles its
registered holder to purchase from FirstMerit, after the Distribution Date, one
one-hundredth of a share of Series A Preferred Stock, no par value (the
"Preferred Shares"), for $120 (the "Purchase Price"), subject to adjustment. The
Rights will be evidenced by the Common Share certificates until the close of
business on the earlier of the date (either, the "Distribution Date") which is
(i) the tenth business day (or such later date as the Board of Directors of
FirstMerit may from time to time fix by reso lution adopted prior to the
Distribution Date that would otherwise have occurred) after the date on which
any Person (as defined in the Rights Agreement) commences a tender or exchange
offer which, if consummated, would result in such Person's becoming an Acquiring
Person, as defined below, or (ii) the tenth business day (or such earlier or
later date as the Board of Directors of FirstMerit may from time to time fix by
resolution adopted prior to the Flip-in Date (as defined below) that would
otherwise have occurred) after the first date of public announcement by
FirstMerit that such Person has become an Acquiring Person (the "Flip-in Date");
provided that if a tender or exchange offer referred to in clause (i) is
canceled, terminated or otherwise withdrawn prior to the Distribution Date
without the purchase of any shares of stock pursuant thereto, such offer shall
be deemed never to have been made.
An Acquiring Person is any Person who is the Beneficial Owner (as
defined in the Rights Agreement) of 10% or more of the outstanding Common Stock,
provided, however, such term shall not include (i) FirstMerit, any wholly-owned
subsidiary of FirstMerit or any employee stock ownership or other employee
benefit plan of FirstMerit, (ii) any person who is the Beneficial Owner of 10%
or more of the outstanding Common Stock as of the date of the Rights Agreement
or who shall become the Beneficial Owner of 10% or more of the outstanding
Common Stock solely as a result of an acquisition of Common Stock by FirstMerit,
until such time as such Person acquires additional Common Stock, other than
through a dividend or stock split, (iii) any Person who becomes an Acquiring
Person without any plan or intent to seek or affect control of FirstMerit if
such Person promptly divests sufficient securities such that such 10% or greater
Beneficial Ownership ceases; or (iv) any Person who Beneficially Owns Common
Stock consisting solely of (A) shares acquired pursuant to the grant or exercise
of an option granted by FirstMerit in connection with
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an agreement to merge with, or acquire, FirstMerit prior to a Flip-in Date, (B)
shares owned by such Person and its Affiliates and Associates at the time of
such grant, (C) shares, amounting to less than 1% of the outstanding Common
Stock, acquired by Affiliates and Associates of such Person after the time of
such grant and (D) shares which are held by such Person in trust accounts,
managed accounts and the like or otherwise held in a fiduciary capacity, that
are beneficially owned by third persons who are not Affiliates or Associates of
such Person or acting together with such Person to hold shares, or which are
held by such Person in respect of a debt previously contracted.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Stock. Promptly
following the Distribution Date, separate certificates evidencing the Rights
("Rights Certificates") will be mailed to holders of record of Common Stock at
the Distribution Date.
The Rights will not be exercisable until the Business Day (as defined in
the Rights Agreement) following the Distribution Date. The Rights will expire on
the earliest of (i) the Exchange Time (as defined below), (ii) the close of
business on July 18, 2006, (iii) the date on which the Rights are redeemed as
described below and (iv) upon certain mergers of FirstMerit with another
corporation pursuant to an agreement entered into prior to a Flip-in Date (in
any such case, the "Final Expiration Date").
In the event that prior to the Expiration Time a Flip-in Date occurs,
each Right (other than Rights Beneficially Owned by the Acquiring Person or any
affiliate or associate thereof, which Rights shall become void) shall constitute
the right to purchase from FirstMerit, upon the exercise thereof in accordance
with the terms of the Rights Agreement, that number of Common Stock of
FirstMerit having an aggregate Market Price (as defined in the Rights
Agreement), on the date of the public announcement of an Acquiring Person's
becoming such (the "Stock Acquisition Date") that gave rise to the Flip-in Date,
equal to twice the Purchase Price for an amount in cash equal to the then
current Purchase Price. In addition, the Board of Directors of FirstMerit may,
at its option, at any time after a Flip-in Date and prior to the time an
Acquiring Person becomes the Beneficial Owner of more than 50% of the
outstanding Common Stock, elect to exchange all (but not less than all) the then
outstanding Rights (other than Rights Beneficially Owned by the Acquiring Person
or any affiliate or associate thereof, which Rights become void) for Common
Stock at an exchange ratio of one Common Share per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date of the Distribution Date (the "Exchange Ratio"). Immediately upon
such action by the Board of Directors (the "Exchange Time"), the right to
exercise the Rights will terminate and each Right will thereafter represent only
the right to receive a number of Common Stock equal to the Exchange Ratio.
Whenever FirstMerit shall become obligated under the preceding paragraph
to issue Common Stock upon exercise of or in exchange for Rights, FirstMerit, at
its option, may substitute therefor shares of Preferred Stock, at a ratio of one
one-hundredth of a share of Preferred Stock for each Common Share so issuable.
In the event that prior to the Final Expiration Date FirstMerit enters
into, consummates or permits to occur a transaction or series of transactions
after the time an Acquiring Person has become such in which, directly or
indirectly, (i) FirstMerit shall consolidate or merge or participate in a
binding share exchange with any other Person if, at the time of the
consolidation, merger or share exchange or at the time FirstMerit enters into an
agreement with respect to such consolidation, merger or share exchange, the
Acquiring Person Controls the Board of Directors of FirstMerit (as defined in
the Rights Agreement) and either (A) any term of or arrangement concerning the
treatment of shares of capital stock in such merger, consolidation or share
exchange relating to the Acquiring Person is not identical to the terms and
arrangements relating to other holders of Common Stock or (B) the Person with
whom the transaction or series of transactions occurs is the Acquiring Person or
an Affiliate or Associate of the Acquiring Person or (ii) FirstMerit shall sell
or otherwise transfer (or one or more of its subsidiaries shall sell or
otherwise transfer) assets (A) aggregating more than 50% of the assets (measured
by either book value or fair market value) or (B) generating more than 50% of
the operating income or cash flow, of FirstMerit and its subsidiaries (taken as
a whole) to any other Person (other than FirstMerit or one or more of its
wholly-owned subsidiaries) or to two or more such Persons which are affiliated
or otherwise acting in concert, if, at the time such sale or transfer of assets
or at the time FirstMerit (or any such subsidiary) enters into an agreement with
respect to such sale or transfer, the Acquiring
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Person Controls the Board of Directors of FirstMerit (a "Flip-over Transaction
or Event"), FirstMerit shall take such action as shall be necessary to ensure,
and shall not enter into, consummate or permit to occur such Flip-over
Transaction or Event until it shall have entered into a supplemental agreement
with the Person engaging in such Flip-over Transaction or Event or the parent
corporation thereof (the "Flip-over Entity"), for the benefit of the holders of
the Rights, providing, that upon consummation or occurrence of the Flip-over
Transaction or Event (i) each Right shall thereafter constitute the right to
purchase from the Flip- over Entity, upon exercise thereof in accordance with
the terms of the Rights Agreement, that number of shares of common stock of the
Flip-over Entity having an aggregate Market Price on the date of consummation or
occurrence of such Flip-over Transaction or Event equal to twice the Exercise
Price for an amount in cash equal to the then current Exercise Price and (ii)
the Flip-over Entity shall thereafter be liable for, and shall assume, by virtue
of such Flip-over Transaction or Event and such supplemental agreement, all the
obligations and duties of FirstMerit pursuant to the Rights Agreement. For
purposes of the foregoing description, the term "Acquiring Person" shall include
any Acquiring Person and its Affiliates and Associates counted together as a
single Person.
The Board of Directors of FirstMerit may, at its option, at any time
prior to the close of business on the Flip- in Date, redeem all (but not less
than all) the then outstanding Rights at a price of $.01 per Right (the
"Redemption Price"), as provided in the Rights Agreement. Immediately upon the
action of the Board of Directors of FirstMerit electing to redeem the Rights,
without any further action and without any notice, the right to exercise the
Rights will terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash for each Right so held.
The holders of Rights will, solely by reason of their ownership of
Rights, have no rights as shareholders of FirstMerit, including, without
limitation, the right to vote or to receive dividends.
A copy of Rights Agreement is included as an exhibit to the Amendment
No. 2 to Form 8-A filed by FirstMerit with the Commission on June 22, 1998. The
foregoing description of the Rights Agreement does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement.
ANTI-TAKEOVER STATUTES
OHIO CONTROL SHARE ACQUISITION ACT. The Ohio Control Share Acquisition
Act ("Acquisition Act") provides that certain notice and informational filings
and special shareholder meeting and voting procedures must be followed prior to
consummation of a proposed "control share acquisition," which is defined as any
acquisition of an issuer's shares which would entitle the acquiror, immediately
after such acquisition, directly or indirectly, to exercise or direct the
exercise of voting power of the issuer in the election of directors within any
of the following ranges of such voting power: (a) one-fifth or more but less
than one-third of such voting power; (b) one-third or more but less than a
majority of such voting power; or (c) a majority or more of such voting power.
Assuming compliance with the notice and information filings prescribed by
statute, the proposed control share acquisition may be made only if, at a duly
convened special meeting of shareholders, the acquisition is approved by both a
majority of the voting power of the issuer represented at the meeting and a
majority of the voting power remaining after excluding the combined voting power
of the "interested shares," being the shares held by the intended acquiror and
the directors and officers of the issuer. In addition "interested shares" are
defined to include those acquired by any person: (i) after the first date of
public disclosure of the transaction and prior to the date of the company being
acquired's meeting, provided such person has paid over $250,000 for such
purchased shares or such purchased shares represents greater than .05% of the
outstanding shares of the company being acquired, and (ii) that transfers such
shares for valuable consideration after the record date established by the
directors, if accompanied by the voting power.
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The Acquisition Act may be made inapplicable to a company by its
corporate governance documents. FirstMerit, by the requisite vote of its
shareholders, has opted out of the Acquisition Act.
OHIO MERGER MORATORIUM STATUTE. The Ohio Merger Moratorium Statute
("Merger Moratorium Act") provisions prohibit certain business combinations and
transactions between an "issuing public corporation" and a beneficial owner of
10% or more of the shares of the corporation (an "interested shareholder") for
at least three years after the interested shareholder attains 10% ownership,
unless the board of directors of the issuing public corporation approves the
transaction before the interested shareholder attains 10% ownership. An "issuing
public corporation" is defined as an Ohio corporation with 50 or more
shareholders that has its principal place of business, principal executive
offices, or substantial assets within the State of Ohio, and as to which no
close corporation agreement exists. Examples of transactions regulated by the
Merger Moratorium Act provisions include the disposition of assets, mergers and
consolidations, voluntary dissolutions, and the transfer of shares ("Moratorium
Transactions").
Subsequent to the three-year period, a Moratorium Transaction may take
place provided that certain conditions are satisfied, including (a) the board of
directors approves the transaction, (b) the transaction is approved by the
holders of shares with at least two-thirds of the voting power of the
corporation (or a different proportion set forth in the articles of
incorporation), including at least a majority of the outstanding shares after
excluding shares controlled by the interested shareholder, or (c) the business
combination results in shareholders, other than the interested shareholder,
receiving a fair price plus interest for their shares. The Merger Moratorium Act
provisions are applicable to all corporations formed under Ohio law, but a
corporation may elect not to be covered by the Merger Moratorium Act provisions,
or subsequently elect to be covered, with an appropriate amendment to its
articles of incorporation. FirstMerit has not taken any such corporate action to
opt out of the Merger Moratorium Act.
OHIO "ANTI-GREENMAIL" STATUTE. Pursuant to the Ohio "Anti-Greenmail"
Statute, a public corporation formed in Ohio may recover profits that a
shareholder makes from the sale of the corporation's securities within 18 months
after making a proposal to acquire control or publicly disclosing the
possibility of a proposal to acquire control. The corporation may not, however,
recover from a person who proves either (i) that his sole purpose in making the
proposal was to succeed in acquiring control of the corporation and there were
reasonable grounds to believe that he would acquire control of the corporation
or (ii) that his purpose was not to increase any profit or decrease any loss in
the stock. Also, before the corporation may obtain any recovery, the aggregate
amount of the profit realized by such person must exceed $250,000. Any
shareholder may bring an action on behalf of the corporation if a corporation
refuses to bring an action to recover these profits. The party bringing such an
action may recover his attorneys' fees if the court having jurisdiction over
such action orders recovery of any profits. An Ohio corporation may elect not to
be covered by the "anti-greenmail" statute with an appropriate amendment to its
articles of incorporation, but FirstMerit has not taken any such corporate
action to opt out of the statute.
CONTROL BID PROVISIONS OF THE OHIO SECURITIES ACT. Ohio law further
requires that any offeror making a control bid for any securities of a "subject
company" pursuant to a tender offer must file information specified in the Ohio
Securities Act with the Ohio Division of Securities when the bid commences. The
Ohio Division of Securities must then decide whether it will suspend the bid
under the statute. If it does so, it must make a determination within three
calendar days after the hearing has been completed, and no later than 14
calendar days after the date on which the suspension is imposed. For this
purpose, a "control bid" is the purchase of, or an offer to purchase, any equity
security of a subject company from a resident of Ohio that would, in general,
result in the offeror acquiring 10% or more of the outstanding shares of such
company. A "subject company" includes any company with both (a) its principal
place of business or principal executive office in Ohio or assets located in
Ohio with a fair market value of at least $1,000,000 and (b) more than 10% of
its record or beneficial equity security holders are resident in Ohio, more than
10% of its equity securities are owned of record or beneficially by Ohio
residents, or more than 1,000 of its record or beneficial equity security
holders are resident in Ohio.
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BANK HOLDING COMPANY ACT. The Bank Holding Company Act ("BHCA") requires
the prior approval of the Board of Governors of the Federal Reserve System in
any case where a bank holding company proposes to acquire direct or indirect
ownership or control of more than 5% of the voting shares of any bank that is
not already majority-owned by it, to acquire all or substantially all of the
assets of another bank or bank holding company, or to merge or consolidate with
any other bank holding company. Section 4 of the BHCA also prohibits a bank
holding company, with certain exceptions, from acquiring more than 5% of the
voting shares of any company that is not a bank and from engaging in any
business other than banking or managing or controlling banks.
DIVIDENDS
An Ohio corporation may pay dividends out of surplus, however created,
but must notify its shareholders if a dividend is paid out of capital surplus.
The ability of FirstMerit to pay cash dividends to its shareholders is largely
dependent on the amount of dividends which may be declared and paid to it by its
subsidiaries. There are a number of statutory and regulatory requirements
applicable to the payment of dividends by banks, savings associations and bank
holding companies.
TRANSFER AGENT
FirstMerit's transfer agent is FirstMerit Bank, N.A., Corporate Trust
Department, 121 South Main Street, Suite 200, Akron, Ohio 44308-1444; telephone
number (330) 384-7202.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
1 Form of Underwriting Agreement between McDonald &
Company Securities, Inc., Keefe, Bruyette & Woods,
Inc. and FirstMerit Corporation
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRSTMERIT CORPORATION
Dated: September 10, 1998 By: /s/ Terry E. Patton
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Terry E. Patton, Secretary
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FIRSTMERIT CORPORATION
CURRENT REPORT ON FORM 8-K
INDEX OF EXHIBITS
EXHIBIT
1 Form of Underwriting Agreement between McDonald & Company
Securities, Inc., Keefe, Bruyette & Woods, Inc. and
FirstMerit Corporation