Exhibit 99.1
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AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated November 12, 2004 (this "AMENDMENT"), to that
certain Agreement and Plan of Merger, dated as of January 27, 2004
(the "AGREEMENT"), by and between Unizan Financial Corp., an Ohio corporation
("UNIZAN"), and Huntington Bancshares Incorporated, a Maryland
corporation ("HUNTINGTON").
W I T N E S S E T H:
WHEREAS, Huntington intends to withdraw its current application with
the Board of Governors of the Federal Reserve System seeking approval to acquire
and merge with Unizan, and Huntington further intends to resubmit such
application at a time to be determined; and
WHEREAS, each of Huntington and Unizan agree that it is in their
mutual best interests to enter into this Amendment to facilitate the orderly
consummation of the transactions contemplated by the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties agree as
follows:
1. DEFINED TERMS. All capitalized terms used herein but not defined
herein shall have the meanings set forth in the Agreement.
2. AMENDMENT TO SECTION 6.11. The parties hereby agree that Section
6.11 is hereby amended to add the following sentence to the end of Section 6.11:
Notwithstanding anything contained herein to the
contrary, Unizan may establish and declare during the
ten Business Days prior to the anticipated Closing
Date a special per share cash dividend with respect to
the Unizan Common Stock equal to (x) (1) the per share
dividends declared from and after January 1, 2005 by
Huntington with respect to the Huntington Common Stock
(other than any such dividends having a record date on
or after the Closing Date) multiplied by (2) the
Exchange Ratio less (y) the per share dividends
declared by Unizan with respect to the Unizan Common
Stock from and after January 1, 2005 (the "SPECIAL
DIVIDEND"). The Special Dividend shall have record and
payment dates prior to the Effective Time.
3. AMENDMENT TO SECTION 5.3. The parties hereby agree that Section 5.3
is hereby amended to add to the end of the last sentence of Section 5.3 the
following language "or (vi) enter into any agreement providing for the merger,
consolidation, sale or other business combination involving Huntington where the
common shares of Huntington are to be exchanged for evidence of indebtedness,
other securities, cash, or cash rights of another entity unless such agreement
expressly provides for the assumption of all obligations hereunder."
4. AMENDMENT TO SECTION 8.1(c). The parties hereby agree that Section
8.1(c) of the Agreement is hereby amended to replace the words "the first
anniversary of the date of this Agreement" with the words "the second
anniversary of the date of this Agreement." The parties hereby further agree
that Section 8.1(c) of the Agreement is hereby amended to add the following to
the end of Section 8.1(c):
; PROVIDED, HOWEVER, that in the event that the Merger
shall not have been consummated on or before the
second anniversary of the date of this Agreement as a
result of the failure to satisfy the condition set
forth in Section 7.1(c) and it is reasonably likely
that the condition set forth in Section 7.1(c) are
capable of being satisfied prior to the date that is
three (3) months following the second anniversary date
of this Agreement, neither party may terminate the
Agreement pursuant to this Section 8.1(c) until the
date that is three (3) months following the second
anniversary date of this Agreement; PROVIDED, FURTHER,
that Unizan shall have the right to extend the
termination date to be the same as the corresponding
termination date under any agreement referenced in
Section 5.3(vi) (but in no event shall this proviso
result in a reduction of the time periods referenced
above) by providing written notice of its election to
Huntington within thirty (30) days of receiving notice
that Huntington has entered into a transaction
described in Section 5.3(vi) (and in any event by
providing such notice prior to the termination date
set forth above and prior to any termination of this
Agreement).
5. AMENDMENT TO SECTION 8.1(g). The parties hereby agree that Section
8.1(g) of the Agreement is hereby amended to (a) replace the words "next
following the Determination Date, in the event that, as of the Determination
Date" with "following the last Business day of any consecutive fifteen (15) full
Nasdaq trading days after January 1, 2005 during which", (b) in the definition
of Average Closing Price, replace the words "the five" with "any fifteen" and
delete the words "ending at the close of trading on the Determination Date", (c)
delete all references to "Determination Date" and (d) in the definition of Final
Index Price, replace the word "five" with "fifteen".
6. AMENDMENT TO SECTION 8.1. The parties hereby agree that Section 8.1
of the Agreement is hereby amended to add the following new Section 8.1(h):
(h) If and only to the extent that (i) an Acquisition
Proposal not solicited by Unizan and not otherwise
resulting from a breach of Section 6.13 is made after
the date of this Amendment and (ii) the Board of
Directors of Unizan determines, in the exercise of its
fiduciary duties and after consultation with its
outside advisors, that it is in the best interests of
its shareholders to do so, Unizan shall be permitted
to terminate this Agreement simultaneously with (x)
entering into a definitive agreement providing for the
Alternative Transaction that is the subject of such
Acquisition Proposal and (y) paying or causing to be
paid to Huntington by wire transfer of same day funds
a fee equal to $20,000,000 (twenty million dollars).
7. AMENDMENT TO SECTION 8.3(a). The parties hereby agree that Section
8.3(a) of the Agreement is hereby amended to add the following sentence to the
end of Section 8.3(a):
Notwithstanding the foregoing, no fee shall be paid
by Unizan to Huntington pursuant to this Section in the event
a fee has been paid to Huntington pursuant to 8.1(h).
8. AMENDMENT TO SECTION 6.13(a). The parties hereby agree that Section
6.13(a) is hereby amended to delete the phrase "prior to the meeting of Unizan
shareholders to be held pursuant to Section 6.3, and" from the second sentence
of the first paragraph.
9. SCHEDULE UPDATE. Huntington hereby agrees that, notwithstanding
anything contained in the Agreement to the contrary, the Unizan Disclosure
Schedule shall be revised for all purposes to include those matters set forth in
Annex A thereto.
10. ENTIRE AGREEMENT. Except as set forth herein, all of the terms and
conditions of the Agreement shall remain in effect without modification, and
(except as provided in Section 9 hereof), the parties agree that by the
execution of this Amendment, they do not waive, and shall not be deemed to have
waived, their rights or remedies arising from any action taken by either party
in connection with the Agreement. The Agreement (including the documents and the
instruments referred to in this Agreement), as amended by this Amendment No. 1,
together with the Confidentiality Agreement, constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter of this Agreement, other
than the Confidentiality Agreement.
11. COUNTERPARTS. This Amendment No. 1 may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each of the parties
and delivered to the other party, it being understood that each party need not
sign the same counterpart.
12. GOVERNING LAW. This Amendment No. 1 shall be governed and construed
in accordance with the internal laws of the State of Ohio applicable to
contracts made and wholly-performed within such state, without regard to any
applicable conflicts of law principles.
IN WITNESS WHEREOF, Unizan and Huntington have caused this
Amendment No. 1 to be executed by their respective officers thereunto duly
authorized as of the date first above written.
UNIZAN FINANCIAL CORP.
By: /s/ Roger L. Mann
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Name: Roger L. Mann
Title: President and Chief Executive Officer
HUNTINGTON BANCSHARES INCORPORATED
By: /s/ Thomas E. Hoaglin
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Name: Thomas E. Hoaglin
Title: Chairman, President and Chief Executive
Officer