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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported May 14, 2010
FIRSTMERIT CORPORATION
Ohio | 0-10161 | 34-1339938 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
III Cascade Plaza, 7th Floor Akron, Ohio | 44308 | |
(Address of principal executive offices) | (Zip Code) |
(330) 996-6300
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
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ITEM 8.01 OTHER EVENTS. | ||||||||
SIGNATURES |
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ITEM 8.01 OTHER EVENTS.
The following amends and restates the description of FirstMerit Corporations (FirstMerit or
the Company) common stock, without par value (the Common Shares) and preferred stock, without
par value (Preferred Shares):
Authorized and Outstanding Capital Stock
Pursuant to FirstMerits Second Amended and Restated Articles of Incorporation, as amended
(the Articles), the Company has authorized for issuance 300,000,000 Common Shares, which
may be issued and sold without further shareholder action provided that the issuance and sale is
made in compliance with the Articles and FirstMerits Second Amended and Restated Code of
Regulations (the Regulations and collectively with the Articles, the Corporate Governance
Documents) and the Ohio General Corporation Law (the OGCL).
In addition, the Articles have authorized for issuance 7,000,000 Preferred Shares, which may
be issued and sold without further shareholder action provided that the issuance and sale is made
in compliance with the Corporate Governance Documents and the OGCL.
Terms of Preferred Shares
Designation
All Preferred Shares must be of equal rank and must be identical except in respect to the
particulars as may be fixed and determined by the Board of Directors, and each share of each series
shall be identical in all respects with all other shares of such series, except as to the date from
which dividends are cumulative.
The Board of Directors is authorized in respect of any unissued Preferred Shares to fix or
change:
a. | The division of such shares into series, the designation of each series (which may be by distinguishing number, letter or title) and the authorized number of shares in each series, which number may be increased (except where otherwise provided by the Board of Directors in creating the series) or decreased (but not below the number of shares thereof outstanding) by like action of the Board of Directors; | ||
b. | The annual dividend rates of each series; | ||
c. | The dates at which dividends, if declared, shall be payable; | ||
d. | The redemption rights and price or prices, if any, for shares of the series; | ||
e. | The terms and amounts of any sinking fund provided for the purchase or redemption of shares of the series; |
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f. | The amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of FirstMerit; | ||
g. | Whether the shares of the series shall be convertible into Common Shares and, if so, the conversion price or prices and the adjustments thereof, if any, and all other terms and conditions upon which such conversion may be made; | ||
h. | Restrictions on the issuance of shares of the same series or of any other class or series; | ||
i. | The voting rights attributable to each issued series of Preferred Shares, if any, subject to the limitations set forth below; and | ||
j. | The right to elect up to two additional directors, and the terms and conditions upon which such rights vest. |
Dividends and Distributions
The holders of Preferred Shares of each series shall be entitled to receive out of any funds
legally available for Preferred Shares as and when declared by the Board of Directors, dividends in
cash at the rate for such series fixed by the Board of Directors, payable quarterly on the dates
fixed for such series. Such dividends shall be cumulative, in the case of shares of each
particular series, from and after the date of issuance thereof. No dividends may be paid or
declared or set apart for any of the Preferred Shares for any quarterly dividend period unless at
the same time a like proportionate dividend for the same quarterly dividend period, ratably in
proportion to the respective annual dividend rates fixed therefor, shall be paid upon or declared
or set apart for all Preferred Shares, of all series then issued and outstanding and entitled to
receive such dividend.
Certain Restrictions
In no event, so long as any Preferred Shares are outstanding, shall any dividends, except a
dividend payable in Common Shares, be paid or declared or any distribution be made, except as
aforesaid, on the Common Shares, nor shall any Common Shares be purchased, retired or otherwise
acquired by FirstMerit:
a. | Unless all accrued and unpaid dividends on the Preferred Shares, including the full dividends for the current quarterly dividend period, have been declared and paid, or a sum sufficient for payment thereof set apart; and | ||
b. | Unless there are no arrearages with respect to the redemption of Preferred Shares of any series from any sinking fund provided for shares of such series by the Board of Directors. |
Liquidation, Dissolution or Winding Up
The holders of Preferred Shares of any series shall, in the case of a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of FirstMerit, be entitled to receive in full
out of the assets of the Company, including its capital, before any amount shall be
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paid or distributed among the holders of the Common Shares, the amounts fixed with respect to
shares of such series in accordance with the decision of the Board of Directors, plus an amount
equal to all dividends accrued and unpaid thereon to the date of payment of the amounts due
pursuant to such liquidation, dissolution or winding up of the affairs of FirstMerit.
The merger or consolidation of FirstMerit into or with any other corporation, or the merger of
any other corporation into it, or the sale, lease or conveyance of all or substantially all the
property of FirstMerit, shall not be deemed to be a dissolution, liquidation or winding up,
voluntary or involuntary.
Voting Rights
No series of Preferred Shares may be issued with voting rights in excess of one vote per
share. The aggregate of all additional directors that may be elected by all series of Preferred
Shares may not exceed two.
Terms of Common Shares
Voting Rights
Cumulative Voting and Preemptive Rights. Each holder of Common Shares has the right to cast
one vote for each share owned on all matters submitted to a vote of shareholders. No holder of
Common Shares is entitled to the right of cumulative voting in the election of directors. The
Articles provide that no holder of shares of any class of capital stock is entitled to preemptive
rights.
Director Nominations. Any shareholder who determines to nominate a person for election as a
director must deliver written notice to the Secretary of FirstMerit not later than: (1) with
respect to an election to be held at an annual meeting of shareholders for the election of
directors, 90 days in advance of such meeting; and (2) with respect to such an election to be held
at a 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 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 Common Shares.
Action Without a Meeting. The OGCL provides that any shareholder action to be taken by
written consent without a meeting must be done unanimously. However, pursuant to the terms of the
Regulations, the Regulations may be amended or new Regulations may be adopted by the shareholders
without a meeting by written consent of the holders of shares entitling them to exercise a majority
of the voting power of FirstMerit on such proposal.
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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 corporations 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.
The Articles modify such voting requirements. Article Seventh of the Articles currently provides that, notwithstanding the above provisions of Ohio law generally
requiring the affirmative vote of the holders of shares entitled to exercise at least two-thirds of the voting power of a corporation, such matters may be approved by the affirmative vote of a majority of the voting power of the Company, as represented by a majority of the outstanding
voting shares of each class of
Common shares entitled to vote as a class.
Amendment to Corporate Governance Documents. Pursuant to the provisions of the Articles, the
Articles may be amended by shareholders holding a majority of the voting power of FirstMerit at a
meeting held for such purposes. The Regulations provide for amendment by shareholders holding a
majority of the voting power at a meeting, or without a meeting by written consent, of the
shareholders entitled to exercise a majority of the voting power of the Company on such proposal.
Directors may amend the code of regulations of an Ohio corporation only to the extent permitted or
provided by a corporations regulations, but the Regulations do not so permit or provide.
Directors
Number; Classification. The Regulations presently provide that the number of directors may be
fixed or changed at a meeting of the shareholders called for the purpose of electing directors at
which a quorum is present, or by the Board of Directors by the affirmative vote of at least
two-thirds of the authorized number of directors, but in no event shall the number of directors
exceed 15 or be less than nine without the approval of the holders of shares entitling them to
exercise a majority of the voting power of FirstMerit. Subject to the foregoing, the number of
directors currently is twelve. A director need not be a shareholder of FirstMerit.
Nominations. Nominations for the election of directors may be made by the Board of Directors
or by any shareholder entitled to vote in the election of directors. However, any shareholder
entitled to vote in the election of directors at a meeting may nominate a director only if written
notice of such shareholders intent to make such nomination or nominations has been given, either
by personal delivery or by U.S. mail, postage prepaid, to the Secretary of FirstMerit not later
than: (1) with respect to an election to be held at an annual meeting of shareholders, 90 days in
advance of the date established by the Regulations for the holding of such meeting; and (2) with
respect to an election to be held at a special meeting of shareholders for the election of
directors, the close of business on the seventh day following the date on which notice of such
meeting is first given to shareholders. Each such notice shall set forth: (a) the name and address
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of the shareholder who intends to make the nomination and of the person or persons to be nominated;
(b) a representation that the shareholder is a holder of record of Common Shares of FirstMerit
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; (c) 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; (d) such other information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant to the proxy rules of the SEC
had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (e) the
consent of each nominee to serve as a director of FirstMerit if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
Removal; Vacancy. A director may be removed with or without cause during the term of office
for which he or she was elected by shareholders by a vote of the holders of a majority of the
voting power entitling them to elect directors in place of those to be removed. The Regulations
provide that vacancies in the Board of Directors, whether occurring by reason of a resignation or
otherwise, may be filled by the Board of Directors 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 corporations best interests.
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 corporations articles or 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
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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 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 its
officers and directors.
Anti-Takeover Statutes
Ohio Control Share Acquisition Act. The Ohio Control Share Acquisition Act (the 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 issuers shares which would entitle the
acquirer, 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: (1) one-fifth or more but less than one-third of such voting power;
(2) one-third or more but less than a majority of such voting power; or (3) a majority or more of
such voting power.
The Acquisition Act does not apply to a corporation if its articles of incorporation or code
of regulations so provide. FirstMerit has opted out of the Acquisition Act.
Ohio Merger Moratorium Statute. The Ohio Merger Moratorium Statute (the Merger Moratorium
Act) prohibits 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
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: (1) the board of directors approves the transaction;
(2) 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 (3) the business combination results in shareholders, other than the
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interested shareholder, receiving a fair price plus interest for their shares. The Merger
Moratorium Act is applicable to all corporations formed under Ohio law, but a corporation may elect
not to be covered by the Merger Moratorium Act, 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 (the
Anti-Greenmail Statute), a public corporation formed in Ohio may recover profits that a
shareholder makes from the sale of the corporations 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: (1) 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 (2)
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 a corporation if the
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: (1) 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 (2)
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.
Bank Holding Company Act. The Bank Holding Company Act 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.
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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
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
and there are certain contractual obligations that may limit FirstMerits ability to pay dividends
on its Common Shares.
Transfer Agent
Our transfer agent is American Stock Transfer & Trust Company, 6201 15th Avenue, Brooklyn, New
York 11219; telephone number (800) 937-5449.
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SIGNATURES
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 |
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By: | /s/ Carlton E. Langer | |||
Carlton E. Langer | ||||
Senior Vice President and
Assistant Corporate Secretary |
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Date: May 14, 2010