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EXHIBIT 2(d)
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR
QUALIFIED UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED WITHOUT BEING SO REGISTERED OR QUALIFIED UNLESS AN EXEMPTION OR
EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS ARE AVAILABLE.
WARRANT
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TO PURCHASE 115,415 SHARES OF THE COMMON STOCK
OF
RELIANCE BANK OF FLORIDA
This is to certify that, for value received, HUNTINGTON BANCSHARES
INCORPORATED, a Maryland corporation ("Huntington"), is entitled to purchase
from RELIANCE BANK OF FLORIDA, a Florida banking corporation ("Reliance"), at
any time on or after the date hereof, an aggregate of up to 115,415 shares of
the common stock, $5.00 par value per share, of Reliance ("Reliance Common"), at
a price of $56.48 per share (the "Exercise Price"), subject to the terms and
conditions of this Warrant and a certain Warrant Purchase Agreement, of even
date herewith, between Huntington and Reliance (the "Warrant Purchase
Agreement"). The number of shares of Reliance Common which may be received upon
the exercise of this Warrant and the Exercise Price are subject to adjustment
from time to time as hereinafter set forth. The terms and conditions set forth
in this Warrant and the Warrant Purchase Agreement shall be binding upon the
respective successors and assigns of both of the parties hereto. This Warrant is
issued in connection with a certain Acquisition Agreement, dated as of the date
hereof (the "Acquisition Agreement"), among Huntington, Huntington Bancshares
Florida, Inc. ("Huntington Florida"), Security National Bank, a national bank
("SNB"), and Reliance, and a certain Agreement and Plan of Merger, dated as of
the date hereof, among Huntington Florida, SNB, and Reliance (together with the
Acquisition Agreement, 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"). The term "Holder" shall mean and refer
to Huntington or any successor holder of this Warrant.
SECTION 1. EXERCISE OF THE WARRANT.
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(a) The Holder will not exercise this Warrant unless it has
obtained all required approvals, if any, of appropriate regulatory authorities
having jurisdiction, including the Federal Reserve Board, pursuant to all
applicable laws and regulations. Further, subject to the terms and
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conditions set forth in this Warrant and in the Warrant Purchase Agreement and
the provisions of applicable law, the Holder will not exercise this Warrant
without the written consent of Reliance, except upon the occurrence of any of
the following events:
(i) any material breach of the Merger Documents by Reliance
which would permit Huntington to terminate the Merger Documents;
(ii) prior to the meeting of the Reliance shareholders duly
called and held for the purpose of approving the Merger in accordance
with the terms of the Merger Documents (the "Shareholders' Meeting"),
any person or group of persons (an "Offeror") submits a proposal to
Reliance relating to (1) the possible sale or other disposition of more
than 25 percent of the shares of the capital stock or any other class
of voting securities of Reliance, including, but not limited to, an
exchange or tender offer therefor, (2) the possible sale or other
disposition of a majority of the assets of Reliance, or (3) a merger or
consolidation involving Reliance, other than a transaction pursuant to
which Reliance will be the surviving corporation and the current
shareholders of Reliance will be the owners of a majority of the stock
of the surviving corporation following the transaction (an "Acquisition
Proposal") and, within 18 months after the date hereof, Reliance enters
into an agreement pursuant to such Acquisition Proposal with the
Offeror and such transaction is consummated within such 18-month
period;
(iii) prior to the Shareholders' Meeting, any person or
group of persons commences a tender or exchange offer to acquire equity
securities of Reliance if, after giving effect to such offer, such
person or group would own or have the right to acquire a majority
equity interest in Reliance (a "Tender Offer"), and such equity
interest is acquired pursuant to such Tender Offer within 18 months
after the date hereof; or
(iv) Reliance enters into an agreement with respect to an
Acquisition Proposal after the date hereof and such transaction is
consummated within 18 months after the date hereof.
(b) As used in this Section 1, "person" or "group of persons"
shall have the meanings assigned to such terms by Section 13(d) of the 1934 Act.
For purposes of this Section 1, a Tender Offer which is contingent upon the
expiration of the Warrant is deemed to commence when it is announced.
(c) This Warrant shall be exercised by presentation and
surrender hereof to Reliance at its principal office accompanied by (i) a
written notice of exercise for a specified number of shares of Reliance Common,
(ii) payment to Reliance, for the account of Reliance, of the Exercise Price for
the number of shares specified in such notice, and (iii) a certificate of the
Holder stating the event or events that have occurred which entitle the Holder
to exercise this Warrant. The Exercise Price for the number of shares of
Reliance Common specified in the notice shall be payable in immediately
available funds.
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(d) Upon such presentation and surrender, Reliance shall issue
promptly (and within one business day if requested by the Holder) to the Holder,
or any assignee, transferee, or designee permitted by subparagraph (f) of this
Section 1, the shares to which the Holder is entitled hereunder.
(e) If this Warrant should be exercised in part only, Reliance
shall, upon surrender of this Warrant for cancellation, execute and deliver a
new Warrant evidencing the rights of the Holder thereof to purchase the balance
of the shares purchasable hereunder. Upon receipt by Reliance of this Warrant,
in proper form for exercise, the Holder shall be deemed to be the holder of
record of the shares of Reliance Common issuable upon such exercise,
notwithstanding that the stock transfer books of Reliance shall then be closed
or that certificates representing such shares of Reliance Common shall not then
be actually delivered to the Holder. Reliance shall pay all expenses, and any
and all federal, state, and local taxes and other charges that may be payable in
connection with the preparation, issue and delivery of stock certificates under
this Section 1 in the name of the Holder or of any assignee, transferee, or
designee permitted by subparagraph (f) of this Section 1.
(f) This Warrant, once exercisable, or any warrant shares
acquired by the Holder by its exercise, may be sold or transferred in whole or
in part to any person, subject to the receipt by such person of approvals of
appropriate regulatory authorities having jurisdiction, including the Federal
Reserve Board, pursuant to all applicable laws and regulations, to the extent
required.
SECTION 2. CERTAIN COVENANTS AND REPRESENTATIONS OF RELIANCE.
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(a) Reliance shall at all times maintain sufficient authorized
but unissued shares of Reliance Common so that this Warrant may be exercised
without additional authorization of the holders of Reliance Common, after giving
effect to all other options, warrants, convertible securities, and other rights
to purchase Reliance Common.
(b) Reliance represents and warrants to the Holder that the
shares of Reliance Common issued upon an exercise of this Warrant will be duly
authorized, fully paid, non-assessable, and subject to no preemptive rights.
(c) Reliance agrees (i) that it will not, by charter amendment
or through reorganization, consolidation, merger, dissolution or sale of assets,
or by any other voluntary act, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations, or conditions to be observed
or performed hereunder by Reliance; (ii) promptly to take all action as may from
time to time be required, including, without limitation (A) complying with all
pre-merger notification, reporting, and waiting period requirements specified in
15 U.S.C. Section 18a and regulations promulgated thereunder, and (B) in the
event, under the Bank Holding Company Act of 1956, as amended (the "Bank
Holding Company Act"), or the Change in Bank Control Act of 1978, or other
statute, the prior approval of the Board of Governors of the Federal Reserve
System or other regulatory agency (collectively, the "Agencies"), is necessary
before the Warrant may be exercised or transferred, cooperate fully with the
Holder in preparing such applications and providing such information to the
Agencies as the Agencies may require in order to permit the Holder to exercise
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or transfer this Warrant and Reliance duly and effectively to issue shares
pursuant to the exercise hereof; and (iii) promptly to take all action provided
herein to protect the rights of the Holder against dilution.
SECTION 3. FRACTIONAL SHARES. Reliance shall not be required to issue
fractional shares of Reliance Common upon an exercise of this Warrant but shall
pay for such fraction of a share in cash or by certified or official bank check
at the Exercise Price.
SECTION 4. EXCHANGE OR LOSS OF WARRANT. This Warrant is exchangeable,
without expense, at the option of the Holder, upon presentation and surrender
hereof at the principal office of Reliance for other Warrants of different
denominations entitling the Holder thereof to purchase in the aggregate the same
number of shares of Reliance Common purchasable hereunder. The term "Warrant" as
used herein includes any warrants for which this Warrant may be exchanged. Upon
receipt by Reliance of evidence reasonably satisfactory to it of the loss,
theft, destruction, or mutilation of this Warrant, and (in the case of loss,
theft, or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, Reliance will execute
and deliver a new Warrant of like tenor and date. Any such new Warrant executed
and delivered shall constitute an additional contractual obligation on the part
of Reliance, whether or not the Warrant so lost, stolen, destroyed, or mutilated
shall at any time be enforceable by anyone.
SECTION 5. CERTAIN TRANSACTIONS.
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(a) In case Reliance shall (i) consolidate with or merge into
any Person, other than Huntington or one of its Affiliates, and shall not be the
continuing or surviving corporation of such consolidation or merger, (ii) permit
any Person, other than Huntington or one of its Affiliates, to merge into
Reliance and Reliance shall be the continuing or surviving corporation, but, in
connection with such merger, the then outstanding shares of Reliance Common
shall be changed into or exchanged for stock or other securities of any other
Person or cash or any other property, or (iii) sell or otherwise transfer all or
substantially all of its assets to any Person, other than Huntington or one of
its Affiliates, then, and in any such case, the agreement governing such
transaction shall make proper provision so that this Warrant shall, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, a warrant, at the option of the
Holder, of either (A) the Acquiring Corporation (as hereinafter defined), (B)
any company which controls the Acquiring Corporation, or (C) in the case of a
merger described in clause (a)(ii) above, Reliance, in which case such warrant
shall be a newly issued warrant (in any such case, the "Substitute Warrant").
(b) For purposes of this Section 5, the following terms have
the meanings indicated:
(i) "Acquiring Corporation" shall mean (A) the continuing
or surviving corporation of a consolidation or merger with Reliance (if
other than Reliance), (B) the corporation merging into Reliance in a
merger in which Reliance is the continuing or surviving person and in
connection with which the then outstanding shares of Reliance Common
are changed into or exchanged for stock or
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other securities of any other Person or cash or any other property, or
(C) the transferee of all or substantially all of Reliance's assets;
(ii) "Substitute Common Stock" shall mean the common stock
issued by the issuer of the Substitute Warrant;
(iii) "Assigned Value" shall mean the Market/Offer Price as
determined pursuant to paragraph 7(b) of the Warrant Purchase
Agreement; provided, however, that in the event of a sale of all or
substantially all of Reliance's assets, the Assigned Value shall be the
sum of the price paid in such sale for such assets and the current
market value of the remaining assets of Reliance as determined by a
recognized investment banking firm selected by the Holder, divided by
the number of shares of Reliance Common outstanding at the time of such
sale;
(iv) "Average Price" shall mean the average closing price
of a share of Substitute Common Stock for the one year immediately
preceding the consolidation, merger, or sale in question, but in no
event higher than the closing price of the shares of Substitute Common
Stock on the day preceding such consolidation, merger, or sale;
provided that if Reliance is the issuer of the Substitute Warrant, the
Average Price shall be computed with respect to a share of the common
stock issued by the Person merging into Reliance or by any company
which controls such Person, as the Holder may elect;
(v) A "Person" shall mean any individual, firm, corporation
or other entity and include as well any syndicate or group deemed to be
a "person" by Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended; and
(vi) "Affiliate" shall have the meaning ascribed to such
term in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended.
(c) The Substitute Warrant shall have the same terms as this
Warrant provided that if the terms of the Substitute Warrant cannot, for legal
reasons, be the same as this Warrant, such terms shall be as similar as possible
and in no event less advantageous to the Holder. The issuer of the Substitute
Warrant shall also enter into an agreement with the then Holder of the
Substitute Warrant in substantially the same form as the Warrant Purchase
Agreement, which shall be applicable to the Substitute Warrant.
(d) The Substitute Warrant shall be exercisable for such number
of shares of Substitute Common Stock as is equal to the Assigned Value
multiplied by the number of shares of Reliance Common for which this Warrant is
then exercisable, divided by the Average Price. The exercise price of the
Substitute Warrant per share of Substitute Common Stock shall be equal to the
Exercise Price multiplied by a fraction in which the numerator is the number of
shares of Reliance Common for which this Warrant is then exercisable and the
denominator is the number of shares of Substitute Common Stock for which the
Substitute Warrant is exercisable.
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SECTION 6. RIGHTS OF THE HOLDER; REMEDIES.
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(a) The Holder shall not, by virtue hereof, be entitled to any
rights of a holder of Reliance Common.
(b) Without limiting the foregoing or any remedies available to
the Holder, Reliance specifically acknowledges that neither Huntington nor any
successor Holder of this Warrant would have an adequate remedy at law for any
breach of this Warrant and Reliance hereby agrees that Huntington and any
successor Holder 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 7. ANTIDILUTION PROVISIONS. The number of shares of Reliance
Common purchasable upon the exercise hereof shall be subject to adjustment from
time to time as provided in this Section 7.
(a) In the event that Reliance issues any additional shares of
Reliance Common at any time after the date hereof (including pursuant to stock
option plans), the number of shares of Reliance Common which can be purchased
pursuant to this Warrant shall be increased by an amount equal to 24.9 percent
of the additional shares so issued.
(b) (i) In the event that, after the date hereof, Reliance pays
or makes a dividend or other distribution of any class of capital stock
of Reliance in Reliance Common, the number of shares of Reliance Common
purchasable upon exercise hereof shall be increased by multiplying such
number of shares by a fraction of which the denominator shall be the
number of shares of Reliance Common outstanding at the close of
business on the day immediately preceding the date of such distribution
and the numerator shall be the sum of such number of shares and the
total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the
opening of business on the day following such distribution.
(ii) In the event that, after the date hereof, outstanding
shares of Reliance Common are subdivided into a greater number of
shares of Reliance Common, the number of shares of Reliance Common
purchasable upon exercise hereof at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely, in the event that, after
the date hereof, outstanding shares of Reliance Common are combined
into a smaller number of shares of Reliance Common, the number of
shares of Reliance Common purchasable upon exercise hereof at the
opening of business on the day following the day upon which such
combination becomes effective shall be proportionately decreased, such
increase or decrease, as the case may be, to become effective
immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.
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(iii) The reclassification (including any reclassification
upon a merger in which Reliance is the continuing corporation) of
Reliance Common into securities including other than Reliance Common
shall be deemed to involve a subdivision or combination, as the case
may be, of the number of shares of Reliance Common outstanding
immediately prior to such reclassification into the number of shares of
Reliance Common outstanding immediately thereafter and the effective
date of such reclassification shall be deemed to be the day upon which
such subdivision or combination becomes effective, as the case may be,
within the meaning of clause (ii) above.
(iv) Reliance may make such increases in the number of
shares of Reliance Common purchasable upon exercise hereof, in addition
to those required by this paragraph (b), as shall be determined by its
Board of Directors to be advisable in order to avoid taxation so far as
practicable of any dividend of stock or stock rights or any event
treated as such for Federal income tax purposes to the recipients.
(c) Whenever the number of shares of Reliance Common
purchasable upon exercise hereof is adjusted pursuant to paragraph (b) above,
the Exercise Price shall be adjusted by multiplying the Exercise Price by a
fraction the numerator of which is equal to the number of shares of Reliance
Common purchasable prior to the adjustment and the denominator of which is equal
to the number of shares of Reliance Common purchasable after the adjustment.
(d) For the purpose of this Section 7, the term "Reliance
Common" shall include any shares of Reliance of any class or series which has no
preference or priority in the payment of dividends or in the distribution of
assets upon any voluntary or involuntary liquidation, dissolution, or winding up
of Reliance and which is not subject to redemption by Reliance.
SECTION 8. NOTICE.
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(a) Whenever the number of shares of Reliance Common for which
this Warrant is exercisable is adjusted as provided in Section 7 hereof,
Reliance shall promptly compute such adjustment and mail to the Holder a
certificate, signed by a principal financial officer of Reliance, setting forth
the number of shares of Reliance Common for which this Warrant is exercisable
and the adjusted Exercise Price as a result of such adjustment, a brief
statement of the facts requiring such adjustment, the computation thereof, and
when such adjustment will become effective.
(b) Upon the occurrence of an event which results in this
Warrant and/or the "Warrant Stock" (as such term is defined in the Warrant
Purchase Agreement) becoming repurchasable as provided in Section 7 of the
Warrant Purchase Agreement, Reliance shall (i) promptly notify the Holder and/or
the "Owner" (as that term is defined in the Warrant Purchase Agreement) of such
event, (ii) promptly compute the "Warrant Repurchase Price" and the "Warrant
Stock Repurchase Price" (as such terms are defined in the Warrant Purchase
Agreement), and (iii) furnish to the Holder and/or the Owner a certificate,
signed by the chief financial officer of Reliance, setting forth the Warrant
Repurchase Price and/or the Warrant Stock Repurchase Price and the basis and
computation thereof.
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(c) Upon the occurrence of an event which results in this
Warrant becoming convertible into, or exchangeable for, the Substitute Warrant,
as provided in Section 5 hereof, Reliance and the Acquiring Corporation shall
promptly notify the Holder of such event; and, upon receipt from the Holder of
its choice as to the issuer of the Substitute Warrant, the Acquiring Corporation
shall promptly compute the number of shares of Substitute Common Stock for which
the Substitute Warrant is exercisable and furnish to the Holder a certificate,
signed by a principal financial officer of the Acquiring Corporation, setting
forth the number of shares of Substitute Common Stock for which the Substitute
Warrant is exercisable, the Substitute Warrant exercise price, a computation
thereof, and when such adjustment will become effective.
SECTION 9. TERMINATION. This Warrant and the rights conferred hereby
shall terminate upon the earliest of (i) six months after the occurrence of the
first to occur of any of the events described in paragraph 1(a) of this Warrant,
(ii) the Effective Date of the Merger, or (iii) upon termination of the Merger
Documents in accordance with the terms of Section 12.01(a), (b)(i), (b)(ii)(A)
(except to the extent that the condition set forth in Section 9.01 of the
Acquisition Agreement has not been satisfied or waived), or (b)(iii) of the
Acquisition Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of
this 22nd day of December, 1994.
ATTEST: RELIANCE BANK OF FLORIDA
By: /s/ Jeffrey S. Dick By: /s/ Sam L. Bockman
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Sam L. Bockman, President and Chief
Executive Officer
Title: Sr. V.P./Cashier
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