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Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered into
as of the 29th day of August, 1997, by and among KeyCorp, an Ohio corporation
(the "Company"), and the parties listed on Schedule I hereto (the "Holders"),
with reference to the following:
RECITALS
A. This Agreement is made pursuant to the Agreement and Plan of Reorganization,
dated as of June 6, 1997 (the "Reorganization Agreement"), by and among the
Company, Key Bank USA, National Association, a wholly owned subsidiary of the
Company and a national banking association, and Champion Mortgage Co., Inc.,
Champion Mortgage Corp., Champion Wholesale Corp., Champion Financial Corp. and
Champion Mortgage Servicing Corp. (each, a "Champion Entity" and collectively,
the "Champion Entities") and Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxxxx 10 Year GRIT, Xxxxxx X. Xxxxxx 10
Year GRIT, Xxxxx Xxxxxx Stock Trust, Xxxxxx X. Xxxxxx Family Share Trust and
Xxxxxxx X. Xxxxxx Family Share Trust (each, a "Seller" and collectively, the
"Sellers").
B. In order to induce the Champion Entities and the Sellers to enter into the
Reorganization Agreement, the Company has agreed to provide the registration
rights provided for in this Agreement to the Holders. The execution of this
Agreement is a condition to the closing of the transactions contemplated by the
Reorganization Agreement.
AGREEMENT
NOW, THEREFORE, on the basis of the foregoing recitals and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto do agree as follows:
1. DEFINITIONS. As used in this Agreement, capitalized terms not otherwise
defined herein have the meanings given such terms in the Reorganization
Agreement, and the following terms shall have the following meanings:
"AFFILIATE": As to any specified Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, "control," when used
with respect to any Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise and the terms "affiliated,"
"controlling" and "controlled" have meanings correlative to the foregoing.
"AGREEMENT": This Registration Rights Agreement, as the same may be amended,
supplemented or modified from time to time in accordance with the terms hereof.
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"BUSINESS DAY": With respect to any act to be performed hereunder, each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in New York, New York, or in any other applicable place where such
act is to occur, are authorized or obligated by applicable law, regulation or
executive order to close.
"CHAMPION ENTITIES": As defined in the recitals above.
"COMMISSION": The Securities and Exchange Commission.
"COMMON STOCK": Common stock, $1.00 par value per share, of the Company.
"COMPANY": KeyCorp, an Ohio corporation, and any successor corporation thereto.
"EFFECTIVENESS PERIOD": As defined in Section 2(a) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the Commission pursuant thereto.
"FILING DATE": The date ninety (90) days after the Closing Date.
"HOLDER": Each registered holder of any Restricted Stock.
"INSPECTORS": As defined in Section 3(h) below.
"PERSON": An individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture or an
unincorporated organization.
"PROCEEDING": An action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
"PROSPECTUS": The prospectus included in the Shelf Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the issuance or resale of any portion of the Restricted Stock
covered by such Shelf Registration Statement, and all other amendments and
supplements to any such prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference, if
any, in such prospectus.
"RECORDS": As defined in Section 3(h) below.
"REORGANIZATION AGREEMENT": As defined in the recitals above.
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"RESTRICTED STOCK": The shares of Company Common Stock issued in the Exchange to
the Sellers.
"RULE 144": Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
"RULE 415": Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
"RULE 424": Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
"SECURITIES ACT": The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
"SELLERS": As defined in the recitals above.
"SHELF REGISTRATION STATEMENT": The registration statement of the Company that
covers the resale of any of the Restricted Stock pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
"SPECIAL COUNSEL": A single firm of attorneys serving as special counsel to the
Holders of the Restricted Stock, for which the Holders of the Restricted Stock
will be reimbursed in accordance with Section 4(b) hereof.
2. SHELF REGISTRATION.
(a) The Company shall use its reasonable best efforts to file with the
Commission as soon as practicable after the Closing Date, but in no event later
than the Filing Date, one Shelf Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering the Restricted Stock.
The Shelf Registration Statement shall be on Form S-3 under the Securities Act
or another appropriate form permitting registration of such Restricted Stock for
resale by the Holders in open market transactions (with or without the use of
one or more brokers). The Company shall use its reasonable best efforts, as
described in Section 3 hereof, to cause the Shelf Registration Statement to be
declared effective pursuant to the Securities Act as promptly as practicable
following the filing thereof, and to keep the Shelf Registration Statement
continuously effective under the Securities Act thereafter for the period ending
one year after the Closing Date or such shorter period ending when the
Restricted Stock shall cease to be held by the Holders or their assignees (the
"Effectiveness Period");
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(b) The Company shall use its reasonable efforts to keep the Shelf Registration
Statement continuously effective by supplementing and amending the Shelf
Registration Statement as required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement
if required by the Securities Act.
3. REGISTRATION PROCEDURES. In connection with the Company's Shelf Registration
Statement, the Company is required by the provisions of Section 2 hereof to
effect the registration of Restricted Stock on the appropriate form available to
permit the sale of the Restricted Stock in open market transactions (with or
without the use of one or more brokers), and pursuant thereto the Company, at
its expense and as expeditiously as reasonably possible, agrees to:
(a) Furnish to the Holders such number of copies of the Shelf Registration
Statement, and each amendment and supplement thereto, preliminary Prospectus,
final Prospectus and such other documents as the Holders may reasonably request;
(b) Promptly prepare and file with the Commission such amendments, including
post-effective amendments, to the Shelf Registration Statement as may be
necessary to cause such Shelf Registration Statement to become and remain
continuously effective and current for the Effectiveness Period; cause the
related Prospectus to be amended or supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 and Rule
430A under the Securities Act and/or any successor rules that may be adopted by
the Commission, as such rules may be amended from time to time; and comply with
the provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Shelf Registration Statement
during such period in accordance with the intended methods of disposition as
contemplated hereby;
(c) Use its reasonable best efforts to register or qualify, to the extent
necessary, the securities covered by the Shelf Registration Statement under the
state securities or "blue sky" laws of up to ten (10) jurisdictions as the
Holders may select within ten (10) days prior to the original filing of the
Shelf Registration Statement, except that the Company shall not for any purpose
be required to execute a general consent to service of process, to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified, to take any action that would subject it to service of process in
suits other than those arising out of the offer and sale of the shares of Common
Stock covered by the Shelf Registration Statement; or to subject itself to
taxation in any jurisdiction where it would not otherwise be obligated to do so;
(d) Notify the Holders promptly after it shall receive notice thereof, of the
date and time when the Shelf Registration Statement and each post-effective
amendment thereto has become effective or a supplement to any Prospectus forming
a part of the Shelf Registration Statement has been filed;
(e) Notify the Holders promptly of any request by the Commission or any state
governmental authority for the amendment or supplementation of the Shelf
Registration Statement or Prospectus or for additional information;
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(f) Prepare and file promptly with the Commission, and promptly notify the
Holders of the filing of, such amendments or supplements to the Shelf
Registration Statement or Prospectus as may be necessary to correct any
misstatements or omissions if to the Company's knowledge, at the time when a
Prospectus relating to such securities is required to be delivered under the
Securities Act, any event has occurred as the result of which any such
Prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(g) Advise the Holders promptly after it shall receive notice or obtain
knowledge of the issuance of any stop order by the Commission, any state
securities commission, any other governmental agency or any court suspending the
effectiveness of the Shelf Registration Statement or the initiation or
threatening of any Proceeding for that purpose and promptly use its reasonable
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such stop order should be issued;
(h) Make available for inspection upon request by any Holder of Restricted Stock
covered by the Shelf Registration Statement or by Special Counsel, all financial
and other records, pertinent corporate documents and properties of the Company
("Records"), and cause all of the Company's officers, directors and employees to
supply all information reasonably requested by any such Holder or Special
Counsel, in connection with the Shelf Registration Statement, but only to the
extent necessary to enable such Holder or its representatives ("Inspectors") to
conduct an investigation for purposes of Section 11(a) of the Securities Act.
Records which the Company determines, in good faith, to be confidential and
which it notifies the Holders or the Inspectors are confidential shall not be
disclosed unless (A) the disclosure of such Records is necessary to avoid or
correct a misstatement of a material fact or omission to state a material fact
in the Shelf Registration Statement, (B) the disclosure of such Records is
required by any court or governmental body with jurisdiction over the Holders or
the Inspector or (C) all of the information contained in such Records has been
made generally available to the public. Each Holder agrees that information
obtained by it or its representatives as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is made generally available to the public. Each Holder agrees that it will, upon
learning that disclosure of such Records is sought from such Holder or any of
its representatives in a court of competent jurisdiction or by any governmental
body, promptly give notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of those Records deemed
confidential; PROVIDED, HOWEVER, if the Company shall not disclose any
information it deems confidential to any Holder or if the Company shall take any
action to prevent disclosure of Records it deems confidential, and, in either
case, the Company is otherwise obligated to disclose such information pursuant
to the terms of this paragraph, then, in each case, the Company shall indemnify
and hold harmless each Holder affected thereby pursuant to an agreement
acceptable in form and substance to such Holder in its reasonable discretion
(i) List all Common Stock covered by the Shelf Registration Statement on the
stock exchange or system, if any, on which the Common Stock of the Company is
then listed.
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The Holders shall furnish to the Company in writing such information regarding
the Holders and the intended method of distribution of the Common Stock to be
distributed pursuant to the Shelf Registration Statement as the Company may from
time to time reasonably request in writing, but only to the extent that such
information is required in order for the Company to comply with its obligations
under all applicable securities and other laws and to ensure that the prospectus
relating to such Common Stock conforms to the applicable requirements of the
Securities Act. The Holders shall notify the Company as promptly as practicable
of any inaccuracy or change in information previously furnished by the Holders
to the Company or of the occurrence of any event, in either case as a result of
which any prospectus relating to the Common Stock contains or would contain an
untrue statement of a material fact regarding the Holders or the intended method
of distribution of such Common Stock or omits to state any material fact
regarding the Holders or the method of distribution of such Common Stock
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and
promptly furnish to the Company any additional information required to correct
and update any previously furnished information or required so that such
prospectus shall not contain, with respect to the Holders or the distribution of
the Common Stock, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(j) The registration rights of the Holders pursuant to this Agreement and the
ability to offer and sell Restricted Stock pursuant to the Shelf Registration
Statement are subject to the conditions and limitations contained in this
paragraph, and accordingly, each Holder will be deemed to have agreed with the
Company to give written notice to the Company no less than five (5) Business
Days prior to when such Holder shall sell any Restricted Stock. Following
receipt of such notice, the Company shall notify the Holder within five (5)
Business Days whether such Holder may not sell the Restricted Stock pursuant to
the Shelf Registration Statement or applicable Prospectus; provided, however,
that any determination by the Company that such Holder shall not be permitted to
sell such Restricted Stock shall be based solely on the following criteria:
(i) the happening of any event of the kind described in Section 3(e)
through 3(g) hereof requiring the preparation and delivery of a
supplemented or amended Prospectus as contemplated herein which
Prospectus shall not yet have been prepared and/or delivered to the
Holders, or
(ii) the determination by the Company in its good faith judgment that
the use of any Prospectus would require the disclosure of material
information that the Company has a bona fide business purpose for
preserving as confidential or the disclosure of which would impede the
Company's ability to consummate a significant transaction, and that the
Company is not otherwise required by applicable securities laws or
regulations to disclose.
If the Company does not respond to a Holder's notice of its intention to sell
within the five (5) Business Day period following receipt of such notice, the
Holder shall be permitted to sell such
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Restricted Stock commencing on the fifth Business Day, without any liability
under the terms of this Agreement.
4. REGISTRATION EXPENSES.
(a) All fees and expenses of the Company incident to the performance of or
compliance with this Agreement by the Company shall be borne by it whether or
not the Shelf Registration Statement is filed or becomes effective and whether
or not any securities are issued or sold pursuant to any Shelf Registration
Statement.
(b) In connection with the registration hereunder, the Company shall reimburse
the Holders of the Restricted Stock being registered or tendered for in such
registration for up to $5,000 for fees and disbursements of Special Counsel,
which firm shall be chosen by the Holders of a majority in aggregate principal
amount of the Restricted Stock.
5. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless each Holder of
Restricted Stock that is included in the Shelf Registration Statement pursuant
to the provisions of this Agreement, and each Person who controls such Holder
within the meaning of the Securities Act from and against, and agrees to
reimburse such Holder and its controlling Persons with respect to, any and all
claims, actions (actual or threatened), demands, losses, damages, liabilities,
costs and expenses to which such Holder and its controlling Persons may become
subject under the Securities Act or otherwise, insofar as such claims, actions,
demands, losses, damages, liabilities, costs or expenses arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Shelf Registration Statement, any Prospectus contained therein,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company shall not be liable in any such case to the extent that any
such claim, action, demand, loss, damage, liability, cost or expense is caused
by (i) an untrue statement or alleged untrue statement or omission or alleged
omission contained in written information furnished by such Holder or such
controlling Person for use in the preparation of the Shelf Registration
Statement; (ii) any untrue statement or alleged untrue statement of material
fact contained in, or any omission or alleged omission of a material fact from,
a Prospectus if (x) a later Prospectus corrects the untrue statement or alleged
untrue statement, or omission or alleged omission, which is the basis for the
claim, action, demand, loss, damage, liability, cost or expense for which
indemnification is sought, and (y) a copy of the later Prospectus had been made
available to the Holders in a timely fashion in accordance with the Securities
Act and had not been sent or given to such purchaser at or prior to confirmation
of sale to such purchaser and the Holder seeking indemnification was under an
obligation to deliver such later Prospectus to the purchaser; (iii) the offer or
sale of the Restricted Stock pursuant to the Shelf Registration Statement
following notification by the Company that such sale is prohibited; or (iv)
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the failure of any Holder to provide the notice to the Company of intended sale
of Restricted Stock required by Section 3 hereof.
(b) Each Holder of shares of Restricted Stock that are included in the Shelf
Registration Statement pursuant to the provisions of this Agreement hereby
agrees to indemnify and hold harmless the Company, its officers, directors and
each Person who controls the Company within the meaning of the Securities Act,
from and against, and agrees to reimburse the Company, its officers, directors
and controlling Persons with respect to, any and all claims, actions, demands,
losses, damages, liabilities, costs or expenses to which the Company, its
officers, directors or such controlling Persons may become subject under the
Securities Act or otherwise, insofar as such claims, actions, demands, losses,
damages, liabilities, costs or expenses arise out of or are based upon (i) any
untrue or alleged untrue statement of any material fact contained in the Shelf
Registration Statement, any Prospectus contained therein or any amendment or
supplement thereto, or are caused by the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon written information furnished by such Holder
for use in the preparation thereof; (ii) the offer or sale of the Restricted
Stock pursuant to the Shelf Registration Statement following notification by the
Company that such sale is prohibited; or (iii) the failure of any Holder to
provide the notice to the Company of intended sale of Restricted Stock required
by Section 3 hereof; provided, however, that a Holder shall not be liable in any
case to the extent such claim, action, demand, loss, damage, liability, cost or
expense arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, or any omission or alleged omission
of a material fact from, a Prospectus if (x) a later Prospectus shall correct
the untrue statement or alleged untrue statement, or omission or alleged
omission, which is the basis for the claims, actions, demands, losses, damages,
liabilities, costs or expenses for such indemnification is sought and (y) a copy
of the later Prospectus had been made available to the Holders in a timely
fashion in accordance with the Securities Act and had not been sent or given to
such purchaser at or prior to confirmation of sale to such purchaser and the
Company, another Holder, or a controlling Person other than the Holder shall
have been under an obligation to deliver such later Prospectus.
(c) Promptly after receipt by a party indemnified pursuant to the provisions of
subsection (a) or (b) of this Section 5 of notice of the commencement of any
action involving the subject matter of the foregoing indemnity provisions, such
indemnified party will, if a claim therefor is to be made against the
indemnifying party pursuant to the provisions of subsection (a) or (b), notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability that it may
have to an indemnified party otherwise than under this Section 5 and shall not
relieve the indemnifying party from liability under this Section 5 unless such
indemnifying party is prejudiced by such omission. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
parties similarly notified, to assume the defense thereof, with
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counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel reasonably acceptable to the indemnifying party (in
which case the indemnifying party shall not have the right to direct the defense
of such action on behalf of the indemnified party or parties). Upon the
permitted assumption by the indemnifying party of the defense of such action,
and reasonable approval by the indemnified party of counsel, the indemnifying
party shall not be liable to such indemnified party under subsection (a) or (b)
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time, or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party. No
indemnifying party shall be liable to an indemnified party for any settlement of
any action or claim without the prior written consent of the indemnifying party
and no indemnifying party may unreasonably withhold its consent to any such
settlement. No indemnifying party will consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability with respect to such claim or litigation.
(d) If the indemnification provided for in subsection (a) or (b) of this Section
5 is held by a court of competent jurisdiction to be unavailable to a party to
be indemnified with respect to any claims, actions, demands, losses, damages,
liabilities, costs or expenses referred to therein, then each indemnifying party
under any such subsection, in lieu of indemnifying such indemnified party
thereunder, hereby agrees to contribute to the amount paid or payable by such
indemnified party as a result of such claims, actions, demands, losses, damages,
liabilities, costs or expenses in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and of the Holders on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. Notwithstanding the foregoing, the amount any Holder
of Restricted Stock shall be obligated to contribute pursuant to this subsection
(d) shall be limited to an amount equal to the per share public offering price
multiplied by the number of shares of Restricted Stock sold by such Holder
pursuant to the registration statement that gives rise to such obligation to
contribute. The relative fault of the Company on the one hand and the Holders on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Holders' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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Notwithstanding anything in this Agreement to the contrary, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to indemnification or contribution hereunder
from any person who was not guilty of such fraudulent misrepresentation.
6. REPORTING REQUIREMENTS UNDER THE EXCHANGE ACT. The Company agrees to use its
reasonable best efforts to file timely such information, documents and reports
as the Commission may require or prescribe under Section 13 or 15(d) (whichever
is applicable) of the Exchange Act.
7. REPRESENTATIONS AND WARRANTIES.
(a) Each of the Holders hereby represents and warrants to the Company (i) that
he or it has full power, authority and capacity to execute and deliver this
Agreement and to perform his or its obligations hereunder, and (ii) that this
Agreement has been duly executed and delivered by such Holder and constitutes a
valid and binding agreement of such Holder, enforceable in accordance with its
terms and conditions, except in each case, as limited by the effect of
bankruptcy, insolvency, reorganization, moratorium and similar laws relating to
or affecting creditors rights generally and court decisions with respect
thereto.
(b) The Company hereby represents and warrants to the Holders (i) that it has
been duly organized and is an existing corporation in good standing as a
corporation under the laws of the State of Ohio, (ii) that it has full power,
authority and capacity to execute and deliver this Agreement and to perform its
obligations hereunder, and (iii) that this Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company, enforceable in accordance with its terms and
conditions, except in each case, as limited by the effect of bankruptcy,
insolvency, reorganization, moratorium and similar laws relating to or affecting
creditors rights generally and court decisions with respect thereto.
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8. MISCELLANEOUS
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(a) AMENDMENTS AND WAIVERS. With the written consent of the Holders of a
majority of the shares of Restricted Stock, the obligations of the Company and
the rights of the Holders under this Agreement may be waived (either generally
or in a particular instance, either retroactively or prospectively and either
for a specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of any supplemental agreement or modifying in any manner the rights and
obligations hereunder of the Holders and the Company; provided, however, that no
such waiver or supplemental agreement shall reduce the aforesaid proportion of
Restricted Stock, the Holders of which are required to consent to any waiver or
supplemental agreement, without the consent of the Holders of all of the
Restricted Stock. Upon the effectuation of each such waiver, consent or
agreement of amendment or modification, the Company agrees to give promptly
written notice thereof to the Holders of the Restricted Stock who have not
previously consented thereto in writing. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or by
course of dealing, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 8(a). Specifically, but
without limiting the generality of the foregoing, the failure of the Holders at
any time or times to require performance of any provision hereof by the Company
shall in no manner affect the right of the Holders at a later time to enforce
the same. No waiver by any party of the breach of any term or provision
contained in this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
(b) NOTICES. All notices and other communications provided for herein shall be
made in writing by hand-delivery, next-day air courier, certified first-class
mail, return receipt requested, telex or telecopy:
(i) if to the Company, as provided in the Reorganization Agreement,
(ii) if to any Holder of any Restricted Stock, to the address of such
Holder as it appears in the Common Stock register of the Company.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when (v) delivered by hand, if personally
delivered, (w) one Business Day after being timely delivered to a next-day air
courier, (x) five Business Days after being deposited in the mail, postage
prepaid, if mailed, (y) when answered back, if telexed or (z) when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and
shall inure to the benefit of each
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Holder of the Restricted Stock. The Company may not assign its rights or
obligations hereunder without the prior written consent of each Holder of the
Restricted Stock. Notwithstanding the foregoing, no transferee shall have any of
the rights granted under this Agreement until such transferee shall acknowledge
its rights and obligations hereunder by a signed written statement of such
transferee's acceptance of such rights and obligations.
(d) COUNTERPARTS. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement.
(e) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed entirely within the State of New York.
(f) SEVERABILITY. The remedies provided herein are cumulative and not exclusive
of any remedies provided by law. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(g) CONSTRUCTION. All Section and other subdivision titles or captions contained
in this Agreement are for convenience of reference only and shall not effect the
meaning or interpretation of any provision of this Agreement. All terms used in
this Agreement include, where appropriate the singular as well as the plural and
the masculine, feminine and neuter genders. The words "herein", "hereof " and
"hereunder", and other words of similar import, refer to this Agreement as a
whole and not to any particular Section or other subdivision; and all Section
and other subdivision references contained herein refer to Sections and other
subdivisions hereof. Use herein of the term "or" is not intended to be
exclusive, unless the context clearly requires. All provisions hereof apply to
successive events and transactions.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
KEYCORP
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Officer
HOLDERS:
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxxxxx Xxxxxx
-----------------------------
Xxxxxxxxxx Xxxxxx
Xxxxxx X. Xxxxxx 10 Year GRIT
/s/ Xxxxxx X. Xxxxxx
-----------------------------
By: Xxxxxx X. Xxxxxx
As:
Xxxxxxxxxx Xxxxxx 10 Year GRIT
/s/ Xxxxxx X. Xxxxxx
--------------------------
By: Xxxxxx X. Xxxxxx
As:
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Xxxxx Xxxxxx Stock Trust
/s/ Xxxxxxxxxx Xxxxxx
--------------------------
By: Xxxxxxxxxx Xxxxxx
As:
Xxxxxx X. Xxxxxx Family Share Trust
/s/ Xxxxxx X. Xxxxx
--------------------------
By: Xxxxxx X. Xxxxx
As:
Xxxxxxx X. Xxxxxx Family Share Trust
/s/ Xxxxxx X. Xxxxx
--------------------------
By: Xxxxxx X. Xxxxx
As:
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