1
EXHIBIT 2(C)
------------
WARRANT PURCHASE AGREEMENT
--------------------------
THIS WARRANT PURCHASE AGREEMENT (this "Agreement") is made as of
February 4, 2000, between HUNTINGTON BANCSHARES INCORPORATED, a Maryland
corporation ("Huntington"), and EMPIRE BANC CORPORATION, a Michigan corporation
("Empire").
RECITALS:
---------
A. Concurrently herewith, Huntington and Empire have entered into (1) a
certain Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), which provides for the merger of Empire into Huntington (the
"Merger"), and (2) a certain Supplemental Agreement, dated as of the date
hereof, which contains certain additional terms and conditions relating to the
Merger (the "Supplemental Agreement"). The Merger Agreement and the Supplemental
Agreement are sometimes hereinafter collectively referred to as the "Merger
Documents." All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Merger Documents.
B. As a condition to Huntington's entering into the Merger Agreement
and the Supplemental Agreement, and in consideration therefor, Empire has agreed
to issue to Huntington a warrant or warrants entitling Huntington to purchase up
to a total of 630,080 shares of Empire Common, on the terms and conditions set
forth herein.
AGREEMENT:
----------
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1. ISSUANCE, DELIVERY, AND EXERCISE OF THE WARRANT.
Concurrently with the execution of the Merger Documents and this Agreement,
Empire shall execute a warrant in favor of Huntington in the form attached as
Attachment A hereto (the "Warrant") to purchase up to a total of 630,080 shares
of Empire Common at a purchase price equal to $29.00 per share (the "Exercise
Price"), subject to adjustments as provided in the Warrant. (The holder of the
Warrant from time to time is referred to as the "Holder.") The Warrant shall be
exercisable in accordance with the terms and conditions set forth in this
Agreement.
SECTION 2. REGISTRATION RIGHTS. If, at any time after the Warrant
becomes exercisable in accordance with its terms, Empire shall receive a written
request therefor from the Holder, Empire shall prepare and file a registration
statement under the 1933 Act covering such number of shares of Empire Common as
the Holder shall specify in the request and shall use its best efforts to cause
such registration statement to become effective; provided, however, that the
Holder shall only have the right to request three such registrations. Without
the written consent of the Holder, neither Empire nor any other holder of
securities of Empire may include any other securities in such registration.
SECTION 3. "PIGGYBACK" RIGHTS. If, at any time after the Warrant
becomes exercisable in accordance with its terms, Empire shall determine to
proceed with the preparation and filing of a registration statement under the
1933 Act in connection with the proposed offer and sale for money of any of its
securities (other than in connection with a dividend reinvestment, employee
stock purchase, stock option, or similar plan or a registration statement on
Form S-4) by it or any of its security holders, Empire shall give written notice
thereof to the Holder. Upon the written request of the Holder given within ten
days after receipt of any such notice from Empire, Empire shall, except as
herein provided, cause all shares of Empire Common which the Holder shall
request be included in such registration statement to be so included; provided,
however, that nothing herein shall prevent Empire from abandoning or delaying
any registration at any time; and provided, further, that if Empire decides not
to proceed with a registration after the registration statement has been filed
with the SEC and Empire's decision not
1
2
to proceed is primarily based upon the anticipated public offering price of the
securities to be sold by Empire, Empire shall promptly complete the registration
for the benefit of the Holder if the Holder agrees to bear all additional and
incremental expenses incurred by Empire as the result of such registration after
Empire has decided not to proceed. If any registration pursuant to this Section
shall be underwritten in whole or in part, the Holder may require that any
shares of Empire Common requested for inclusion pursuant to this Section be
included in the underwriting on the same terms and conditions as the securities
otherwise being sold through the underwriters. In the event that the shares of
Empire Common requested for inclusion pursuant to this Section would constitute
more than 25 percent of the total number of shares to be included in a proposed
underwritten public offering, and if in the good faith judgment of the managing
underwriter of such public offering the inclusion of all of such shares would
interfere with the successful marketing of the shares of being offered by
Empire, the number of shares otherwise to be included in the underwritten public
offering hereunder may be reduced; provided, however, that after any such
required reduction, the shares of Empire Common to be included in such offering
for the account of the Holder shall constitute at least 25 percent of the total
number of shares to be included in such offering.
SECTION 4. OBLIGATIONS OF EMPIRE IN CONNECTION WITH A REGISTRATION. If
and whenever Empire is required by the provisions of Sections 2 or 3 hereof to
effect the registration of any shares of Empire Common under the 1933 Act,
Empire shall:
(a) prepare and file with the SEC a registration statement
with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for such period as may be
reasonably necessary to effect the sale of such securities, not to exceed nine
months;
(b) prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for such period
as may be reasonably necessary to effect the sale of such securities, not to
exceed nine months;
(c) furnish to the Holder and to the underwriters of the
securities being registered such reasonable number of copies of the registration
statement, amendments thereto, preliminary prospectus, final prospectus, and
such other documents as the Holder or such underwriters may reasonably request
in order to facilitate the public offering of such securities;
(d) use its best efforts to register or qualify the securities
covered by such registration statement under such state securities or blue sky
laws of such jurisdictions as the Holder or such underwriters may reasonably
request; provided that Empire shall not be required by virtue hereof to submit
to the general jurisdiction of any state;
(e) notify the Holder, promptly after Empire shall receive
notice thereof, of the time when such registration statement or any
post-effective amendment thereof has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed;
(f) notify the Holder promptly of any request by the SEC for
the amending or supplementing of such registration statement or prospectus or
for additional information;
(g) prepare and file with the SEC, promptly upon the request
of the Holder, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for the Holder (and concurred in by
counsel for Empire), is required under the 1933 Act or the rules and regulations
promulgated thereunder in connection with the distribution of the shares of
Empire Common by the Holder;
(h) prepare and promptly file with the SEC such amendment or
supplement to such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus is
required to be delivered under the 1933 Act, any event shall have occurred as
the result of which such prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances in which they
were made, not misleading;
2
3
(i) advise the Holder, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued; and
(j) at the request of the Holder, furnish on the date or dates
provided for in the underwriting agreement: (1) an opinion or opinions of the
counsel representing Empire for the purposes of such registration, addressed to
the underwriters and to the Holder, covering such matters as such underwriters
and the Holder may reasonably request and as are customarily covered by issuer's
counsel at that time; and (2) a letter or letters from the independent certified
public accountants of Empire, addressed to the underwriters and to the Holder,
covering such matters as such underwriters or the Holder may reasonably request,
in which letters such accountants shall state (without limiting the generality
of the foregoing) that they are independent certified public accountants within
the meaning of the 1933 Act and that, in the opinion of such accountants, the
financial statements and other financial data of Empire included in the
registration statement or any amendment or supplement thereto comply in all
material respects with the applicable accounting requirements of the 1933 Act.
SECTION 5. EXPENSES OF REGISTRATION. With respect to a registration
requested pursuant to Section 2 hereof and with respect to each inclusion of
shares of Empire Common in a registration statement pursuant to Section 3
hereof, Empire shall bear the following fees, costs, and expenses: all
registration, stock exchange listing or NASD fees, printing expenses, fees and
disbursements of counsel and accountants for Empire, fees and disbursements of
counsel for the underwriter or underwriters of such securities (if Empire and/or
the Holder are required to bear such fees and disbursements), and all legal fees
and disbursements and other expenses of complying with state securities or blue
sky laws of any jurisdictions in which the securities to be offered are to be
registered or qualified. Fees and disbursements of counsel and accountants for
the Holder, underwriting discounts and commissions and transfer taxes relating
to the Empire Common being sold for the Holder, and any other expenses incurred
by the Holder not expressly included above shall be borne by the Holder.
SECTION 6. INDEMNIFICATION.
(a) Empire shall indemnify and hold harmless the Holder, any
underwriter (as defined in the 1933 Act) for the Holder, and each person, if
any, who controls the Holder or such underwriter within the meaning of the 1933
Act, from and against any and all loss, damage, liability, cost, and expense to
which the Holder or any such underwriter or controlling person may become
subject under the 1933 Act or otherwise, insofar as such losses, damages,
liabilities, costs, or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
filed pursuant to Section 4 hereof, any prospectus or preliminary 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
light of the circumstances in which they are made, not misleading; provided,
however, that Empire will not be liable in any such case to the extent that any
such loss, damage, liability, cost, or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by the Holder, such underwriter,
or such controlling persons in writing specifically for use in the preparation
thereof.
(b) Promptly after receipt by an indemnified party pursuant to
the provisions of paragraph (a) of this Section 6 of notice of the commencement
of any action involving the subject matter of the foregoing indemnity
provisions, such indemnified party shall, if a claim thereof is to be made
against Empire pursuant to the provision of such paragraph (a), promptly notify
Empire of the commencement thereof; but the omission to so notify Empire will
not relieve it from any liability which it may have to any indemnified party
otherwise hereunder. In case such action is brought against any indemnified
party and such indemnified party notifies Empire of the commencement thereof,
Empire shall have the right to participate in and, to the extent that it may
wish to do so, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, if the defendants in any action include
both the indemnified party and Empire and there is a conflict of interest which
would prevent counsel for Empire from also representing the indemnified party,
the indemnified party or parties shall have the right to select one separate
counsel to participate in the defense of such action on behalf of such
indemnified party or parties. After notice from Empire to such indemnified party
of its election so to assume the defense of any such action, the indemnified
party shall have the right to participate in such action and to retain its
3
4
own counsel, but Empire shall not be required to indemnify and hold harmless the
indemnified party pursuant to the provisions of such paragraph (a) for any legal
fees or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, other than reasonable costs of
investigation, unless (1) the indemnified party shall have employed separate
counsel in accordance with the provisions of the preceding sentence of this
paragraph (b), (2) Empire shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after the notice of the commencement of the action, or (3) Empire has authorized
the employment of counsel for the indemnified party at the expense of Empire.
(c) If recovery is not available under the foregoing
indemnification provisions, for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that contribution
is not permitted under Section 11(f) of the 1933 Act. In determining the amount
of contribution to which the respective parties are entitled, there shall be
considered the parties' relative knowledge and access to information concerning
the matter with respect to which the claim was asserted, the opportunity to
correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances.
SECTION 7. REPURCHASE RIGHTS.
(a) At any time after the Warrant becomes exercisable and
prior to the expiration of the Warrant, in accordance with the terms thereof:
(1) Empire may, and upon the written request of the
Holder, Empire shall, repurchase the Warrant from the Holder at a price (the
"Warrant Repurchase Price") equal to the difference between the "Market/Offer
Price" (as defined in paragraph (b) below) and the Exercise Price, multiplied by
the number of shares for which the Warrant may then be exercised, in the
aggregate, but only if the Market/Offer Price is greater than the Exercise
Price; and
(2) Empire may, and upon the written request of the
owner (the "Owner") of any shares of Empire Common purchased pursuant to an
exercise of the Warrant ("Warrant Stock"), Empire shall, repurchase all of the
shares of Warrant Stock held by such Owner at a price (the "Warrant Stock
Repurchase Price") equal to the number of shares to be repurchased hereunder
multiplied by the greater of the Exercise Price and the Market/Offer Price.
(b) For purposes of Section 7(a), the "Market/Offer Price"
shall mean the highest of (1) the price per share at which a tender offer or
exchange offer for shares of Empire Common has been made, (2) the price per
share of Empire Common to be paid by any third party pursuant to an agreement
with Empire, and (3) the highest closing price for shares of Empire Common
within the 4-month period immediately preceding the date the Holder gives notice
of the required repurchase of the Warrant or the Owner gives notice of the
required repurchase of Warrant Stock, as appropriate. In the event that an
exchange offer is made or an agreement is entered into for a merger or
consolidation involving consideration other than cash, the value of the
securities or other property issuable or deliverable in exchange for Empire
Common shall be determined by a nationally recognized investment banking firm
mutually acceptable to the parties hereto.
(c) The Holder and the Owner may exercise their respective
rights to require Empire to repurchase the Warrant or the Warrant Stock pursuant
to this Section 7 by surrendering for such purpose to Empire, at its principal
office, the Warrant or certificates for shares of Warrant Stock, as the case may
be, free and clear of any liens, claims, encumbrances, or rights of third
parties of any kind, accompanied by a written notice or notices stating that the
Holder or the Owner, as the case may be, requests Empire to repurchase such
Warrant or Warrant Stock in accordance with the provisions of this Section 7.
Subject to the last proviso of Section 7(d) below, as promptly as practicable,
and in any event within five business days after the surrender of the Warrant or
certificates representing shares of Warrant Stock and the receipt of such notice
or notices relating thereto, Empire shall deliver or cause to be delivered to
the Holder or Owner the Warrant Repurchase Price or the Warrant Stock Repurchase
Price therefor, as applicable, or the portion thereof which Empire is not then
prohibited under applicable law and regulation from so delivering.
4
5
(d) To the extent that Empire is prohibited under applicable
law or regulation, or as a result of administrative or judicial action, from
repurchasing the Warrant and/or the Warrant Stock in full at any time that it
may be required to do so hereunder, Empire shall immediately so notify the
Holder and/or the Owner and thereafter deliver or cause to be delivered, from
time to time, to the Holder and/or the Owner, as appropriate, the portion of the
Warrant Repurchase Price and the Warrant Stock Repurchase Price, respectively,
which it is no longer prohibited from delivering, within five business days
after the date on which Empire is no longer so prohibited. Upon receipt of such
notice from Empire and for a period of 15 days thereafter, the Holder and/or
Owner may revoke its notice of repurchase of the Warrant and/or Warrant Stock by
written notice to Empire at its principal office stating that the Holder and/or
the Owner elects to revoke its election to exercise its right to require Empire
to repurchase the Warrant and/or Warrant Stock, whereupon Empire will promptly
deliver to the Holder and/or Owner the Warrant and/or certificates representing
shares of Warrant Stock surrendered to Empire for purposes of such repurchase.
Whether or not such election is revoked, Empire hereby agrees to use its best
efforts to obtain all required legal and regulatory approvals necessary to
permit Empire to repurchase the Warrant and/or the Warrant Stock as promptly as
practicable.
SECTION 8. ASSUMPTION OF OBLIGATIONS UNDER THIS AGREEMENT. Empire will
not enter into any transaction described in Section 5(a) of the Warrant unless
the "Acquiring Corporation" (as that term is defined in the Warrant) assumes in
writing all the obligations of Empire hereunder.
SECTION 9. REMEDIES. Without limiting the foregoing or any remedies
available to the Holder, Empire specifically acknowledges that neither
Huntington nor any successor holder of the Warrant would have an adequate remedy
at law for any breach of this Warrant Purchase Agreement and Empire hereby
agrees that Huntington and any successor holder of the Warrant shall be entitled
to specific performance of the obligations of Empire hereunder and injunctive
relief against actual or threatened violations of the provisions hereof.
SECTION 10. TERMINATION. This Agreement will terminate upon a
termination of the Warrant in accordance with Section 9 thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant
Purchase Agreement as of the day and year first above written.
HUNTINGTON BANCSHARES
INCORPORATED
By: /s/ Richard A. Cheap
-----------------------------------
Richard A. Cheap
General Counsel and Secretary
EMPIRE BANC CORPORATION
By: /s/ James E. Dutmers, Jr.
-----------------------------------
James E. Dutmers, Jr.,
Chairman and Chief Executive Officer
5