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EXHIBIT 2(c)
WARRANT PURCHASE AGREEMENT
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THIS WARRANT PURCHASE AGREEMENT (this "Agreement") is made as of
December 22, 1994, between HUNTINGTON BANCSHARES INCORPORATED, a Maryland
corporation ("Huntington"), and RELIANCE BANK OF FLORIDA, a Florida banking
corporation ("Reliance").
RECITALS:
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A. Concurrently herewith, Huntington, Huntington Bancshares Florida,
Inc., a wholly owned subsidiary of Huntington ("Huntington Florida"), Security
National Bank, a national bank ("SNB"), and Reliance have entered into
Acquisition Agreement, dated as of the date hereof (the "Acquisition
Agreement"), and Huntington Florida, SNB, and Reliance have entered into a
certain Agreement and Plan of Merger, dated as of the date hereof (together with
the Acquisition, collectively, the "Merger Documents"), which provide for the
merger of Reliance into The Huntington National Bank of Florida, as successor by
name change to SNB ("HNBF"), which will be a wholly owned subsidiary of
Huntington Florida (or, under certain circumstances, the merger of Huntington
Federal Savings Bank, a wholly owned subsidiary of Huntington, into Reliance)
(in either case, the "Merger"). All capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Merger
Documents.
B. As a condition to Huntington's and Huntington Florida's entering
into the Merger Documents and in consideration therefor, Reliance has agreed to
issue to Huntington a warrant or warrants entitling Huntington to purchase up to
a total of 115,415 shares of Reliance Common, on the terms and conditions set
forth herein.
AGREEMENT:
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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 AND EXERCISE OF THE WARRANT. Concurrently with the
execution of the Merger Documents and this Agreement, Reliance shall issue to
Huntington a warrant in the form attached as Attachment A hereto (the "Warrant")
to purchase up to a total of 115,415 shares of Reliance Common at a purchase
price equal to $56.48 per share (the "Exercise Price"), subject to adjustments
as provided in the Warrant. (The holder of the Warrant from time to time is
hereinafter referred to as the "Holder.") The Warrant shall be exercisable in
accordance with the terms and conditions set forth therein.
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SECTION 2. REGISTRATION RIGHTS. If, at any time after the Warrant
becomes exercisable in accordance with its terms, Reliance shall receive a
written request therefor from the Holder, Reliance shall prepare and file a
registration statement under the 1933 Act covering such number of shares of
Reliance 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 Reliance nor
any other holder of securities of Reliance may include securities in such
registration.
SECTION 3. "PIGGYBACK" RIGHTS. If, at any time after the Warrant
becomes exercisable in accordance with its terms, Reliance 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, Reliance 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 Reliance, Reliance shall,
except as herein provided, cause all shares of Reliance Common which the Holder
shall request be included in such registration statement to be so included;
provided, however, that nothing herein shall prevent Reliance from abandoning or
delaying any registration at any time; and provided, further, that if Reliance
decides not to proceed with a registration after the registration statement has
been filed with the SEC and Reliance's decision not to proceed is primarily
based upon the anticipated public offering price of the securities to be sold by
Reliance, Reliance shall promptly complete the registration for the benefit of
the Holder if the Holder agrees to bear all additional and incremental expenses
incurred by Reliance as the result of such registration after Reliance 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
Reliance 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 Reliance
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
Reliance, 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 Reliance 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 RELIANCE IN CONNECTION WITH A REGISTRATION.
If and whenever Reliance is required by the provisions of Sections 2 or 3 hereof
to effect the registration of any shares of Reliance Common under the 1933 Act,
Reliance 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;
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(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 Reliance shall not be required by virtue hereof to submit
to the general jurisdiction of any state;
(e) notify the Holder, promptly after Reliance 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 Reliance), is required under the 1933 Act or the rules and
regulations promulgated thereunder in connection with the distribution of the
shares of Reliance 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;
(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: (i) an opinion or opinions of the
counsel representing Reliance 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
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issuer's counsel at that time; and (ii) a letter or letters from the independent
certified public accountants of Reliance, 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
Reliance 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 Reliance Common in a registration statement pursuant to Section 3
hereof, Reliance shall bear the following fees, costs, and expenses: all
registration, stock exchange listing, and NASD fees, printing expenses, fees and
disbursements of counsel and accountants for Reliance, fees and disbursements of
counsel for the underwriter or underwriters of such securities (if Reliance
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 Reliance 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) Reliance 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 Reliance 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 Reliance pursuant to the provision of such paragraph (a), promptly
notify Reliance of the commencement thereof; but the omission to so notify
Reliance will not relieve it from any
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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 Reliance of the commencement thereof, Reliance 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 Reliance and there is a conflict of interest which would prevent
counsel for Reliance 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 Reliance 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 own counsel, but
Reliance 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
(i) the indemnified party shall have employed separate counsel in accordance
with the provisions of the preceding sentence of this paragraph (b), (ii)
Reliance 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 (iii) Reliance has authorized the employment
of counsel for the indemnified party at the expense of Reliance.
(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:
(i) Reliance may, and upon the written request of the
Holder, Reliance 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;
(ii) Reliance may, and upon the written request of the
owner (the "Owner") of any shares of Reliance Common purchased
pursuant to an exercise of the Warrant ("Warrant Stock"), Reliance
shall, repurchase all of the shares of Warrant Stock held by such
Owner at a price (the "Warrant Stock Repurchase Price")
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equal to the number of shares to be repurchased hereunder multiplied
by the greater of the Exercise Price and the Market/Offer Price; and
(iii) If any repurchase pursuant to clauses (i) and (ii) of
this Section 7 occurs, Reliance shall, upon the written request of
Huntington, pay to Huntington all of Huntington's out-of-pocket
expenses actually incurred and paid or payable to third parties in
connection with the transactions contemplated by the Acquisition
Agreement for legal, accounting, and investment banking fees and
expenses.
(b) For purposes of paragraph (a) of this Section 7, the
"Market/Offer Price" shall mean the highest of (i) the price per share at which
a tender offer or exchange offer for shares of Reliance Common has been made,
(ii) the price per share of Reliance Common to be paid by any third party
pursuant to an agreement with Reliance, and (iii) the highest closing price for
shares of Reliance 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
Reliance 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 Reliance to repurchase the Warrant or the Warrant Stock
pursuant to this Section 7 by surrendering for such purpose to Reliance, 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 Reliance to
repurchase such Warrant or Warrant Stock in accordance with the provisions of
this Section 7. Subject to the last proviso of paragraph 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, Reliance 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 Reliance is not then prohibited under applicable law and regulation from
so delivering.
(d) To the extent that Reliance 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, Reliance 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 Reliance is no longer so prohibited. Upon receipt of
such notice from Reliance 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 Reliance at its principal office stating that the
Holder and/or the Owner elects to revoke its election to exercise its right to
require Reliance to repurchase the Warrant and/or Warrant Stock, whereupon
Reliance
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will promptly deliver to the Holder and/or Owner the Warrant and/or certificates
representing shares of Warrant Stock surrendered to Reliance for purposes of
such repurchase. Whether or not such election is revoked, Reliance hereby agrees
to use its best efforts to obtain all required legal and regulatory approvals
necessary to permit Reliance to repurchase the Warrant and/or the Warrant Stock
as promptly as practicable.
SECTION 8. ASSUMPTION OF OBLIGATIONS UNDER THIS AGREEMENT. Reliance
will not enter into any transaction described in paragraph 5(a) of the Warrant
unless the "Acquiring Corporation" (as that term is defined in the Warrant)
assumes in writing all the obligations of Reliance hereunder.
SECTION 9. REMEDIES. Without limiting the foregoing or any remedies
available to the Holder, Reliance 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 Reliance hereby
agrees that Huntington and any successor holder of the Warrant shall be entitled
to specific performance of the obligations of Reliance 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/ Zuheir Sofia
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Zuheir Sofia, President
RELIANCE BANK OF FLORIDA
By: /s/ Sam L. Bockman
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Sam L. Bockman, President and Chief Executive Officer
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