As filed with the Securities and Exchange Commission on
July 16, 2003.
Registration No. 333-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
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)
--------------------
KEYCORP DIRECTORS' DEFERRED SHARE PLAN
(Full Title of the Plan)
--------------------
STEVEN N. BULLOCH
ASSISTANT SECRETARY
KEYCORP
127 PUBLIC SQUARE
CLEVELAND, OHIO 44114
(Name and Address of Agent For Service)
(216) 689-5109
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
==================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of
be Registered Registered Share (1) Price (1) Registration Fee
------------------------------------------------------------------------------------------------------------------
Common Shares with a 500,000 shares $ 25.38 $12,690,000 $1,026.62
par value of $1 each (2)
==================================================================================================================
(1) As calculated pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), the maximum aggregate offering price
is based on the average of the high and low prices of KeyCorp Common
Shares, with a par value of $1 each (the "Common Shares"), for July 11,
2003.
(2) Each Common Share includes an associated right to purchase one Common
Share (the "Right"). Until the occurrence of certain prescribed events,
none of which has occurred, the Right is not exercisable, is evidenced
by the certificate representing the Common Share, and will be
transferred along with and only with the Common Share.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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 participants in the KeyCorp Directors' Deferred Share Plan as
specified by Rule 428(b)(1) under the Securities Act. 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 Securities and Exchange
Commission (the "SEC"), are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31, 2002.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
3. Current Reports on Form 8-K filed on (a) January 15, 2003, (b)
January 24, 2003, and (c) April 17, 2003.
4. The description of (a) the Common Shares contained in the
Registration Statement on Form 8-A filed with the SEC on 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, as amended (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.
5. 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 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
1
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 interests 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 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.
2
Under the terms of 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:
(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 a 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.
3
(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 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.
4
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 16th day of July, 2003.
KEYCORP
By: /s/ Steven N. Bulloch
-------------------------------
Steven N. Bulloch
Assistant Secretary
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
SIGNATURE TITLE DATE
------------------------------------------------------------------------------------
Henry L. Meyer III Chairman, Chief Executive Officer, July 16, 2003
President and Director (Principal
Executive Officer)
Jeffrey B. Weeden Senior Executive Vice President and July 16, 2003
Chief Financial Officer
Lee G. Irving Executive Vice President and Chief July 16, 2003
Accounting Officer (Principal
Accounting Officer)
Cecil D. Andrus Director July 16, 2003
William G. Bares Director July 16, 2003
Edward P. Campbell Director July 16, 2003
Carol A. Cartwright Director July 16, 2003
Alexander M. Cutler Director July 16, 2003
Henry S. Hemingway Director July 16, 2003
Charles R. Hogan Director July 16, 2003
Shirley A. Jackson Director July 16, 2003
Douglas J. McGregor Director July 16, 2003
Eduardo R. Menasce Director July 16, 2003
Steven A. Minter Director July 16, 2003
Bill R. Sanford Director July 16, 2003
Thomas C. Stevens Director July 16, 2003
Dennis W. Sullivan Director July 16, 2003
Peter G. Ten Eyck, II Director July 16, 2003
The undersigned, by signing his name hereto, executes this Registration
Statement on Form S-8 pursuant to Powers of Attorney executed by the above-named
Officers and Directors and filed with the Securities and Exchange Commission as
Exhibit 24 hereto.
By: /s/ Steven N. Bulloch Date: July 16, 2003
-----------------------------------
Steven N. Bulloch
Attorney-in-Fact
5
INDEX TO EXHIBITS
EXHIBIT NO.: DESCRIPTION
4(a) Amended and Restated Articles of Incorporation of KeyCorp filed as Exhibit 3 to Form
10-Q for the quarter ended September 30, 1998, and incorporated herein by reference.
4(b) Amended and Restated Regulations of KeyCorp, effective May 23, 2002, filed as
Exhibit 3.2 to Form 10-Q for the quarter ended June 30, 2002, and incorporated herein
by reference.
4(c) Restated Rights Agreement, dated as of May 15, 1997, between KeyCorp and KeyBank National
Association, as Rights Agent, filed on June 19, 1997, as Exhibit 1 to Form 8-A, and
incorporated herein by reference.
15 Acknowledgment Letter of Ernst & Young LLP.
23 Consent of Ernst & Young LLP.
24 Powers of attorney pursuant to which certain officers and Directors have signed this
Form S-8 Registration Statement.
6