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Exhibit 2(a)
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of May
5, 1997, between HUNTINGTON BANCSHARES INCORPORATED, a Maryland Corporation
("Huntington"), and FIRST MICHIGAN BANK CORPORATION, a Michigan corporation
("First Michigan"). (Huntington and First Michigan are collectively referred to
herein as the "Constituent Corporations.")
RECITALS:
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A. Huntington is a corporation organized and existing under the laws of
the State of Maryland and its principal office in the State of Maryland is
located in Baltimore County.
B. Huntington is authorized to issue a total of 306,617,808 shares of
capital stock, consisting of (i) 300,000,000 shares of common stock, without par
value ("Huntington Common"), of which 144,739,081 shares were issued and
outstanding on April 22, 1997 (exclusive of treasury shares), all of which
shares are entitled to vote on the "Merger," as such term is defined in Article
1 hereof, and (ii) 6,617,808 shares of serial preferred stock, without par
value, none of which was issued and outstanding on April 22, 1997.
C. First Michigan was incorporated under the Michigan Business
Corporation Act on August 15, 1973, and currently exists as a corporation under
the laws of Michigan.
D. First Michigan is authorized to issue 51,000,000 shares of capital
stock, consisting of (i) 50,000,000 shares of common stock, $1.00 par value per
share ("First Michigan Common"), for an aggregate par value of $50,000,000, of
which 26,475,960 shares were issued and outstanding on April 30, 1997
(approximately 27,799,758 shares as adjusted to give effect to a stock dividend
that is payable on May 30, 1997, to holders of First Michigan Common of record
on April 30, 1997) (the "First Michigan 1997 Stock Dividend"), all of which
shares are entitled to vote on the "Merger," as such term is defined in Article
1 hereof, with an additional 999,079 shares of such stock, in the aggregate,
being subject to outstanding stock options previously granted (approximately
1,049,033 shares as adjusted for the First Michigan 1997 Stock Dividend)
(collectively, the "First Michigan Stock Options" and individually, a "First
Michigan Stock Option") under the First Michigan Stock Compensation Plan, the
First Michigan 1997 Director Stock Option Plan, and the First Michigan 1987
Stock Option Plan (collectively, the "First Michigan Stock Option Plans"), and
(ii) 1,000,000 shares of preferred stock, without par value, none of which was
issued and outstanding on April 30, 1997.
E. The respective Boards of Directors of Huntington and First Michigan
have approved the merger of First Michigan into Huntington upon and subject to
the terms and conditions contained herein.
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AGREEMENT:
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NOW, THEREFORE, in consideration of the foregoing recitals, which shall
constitute a part of this Agreement, and the mutual promises contained herein,
the parties agree as follows:
ARTICLE 1
THE MERGER
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Subject to the terms and conditions hereof, and the terms and
conditions contained in a certain Supplemental Agreement, of even date herewith,
among Huntington and First Michigan (the "Supplemental Agreement"), which is
incorporated herein by reference, at the "Effective Time" (as such term is
defined in Article 2 hereof), First Michigan shall be merged into Huntington
(the "Merger"). Huntington shall be the surviving corporation in the Merger (the
"Surviving Corporation"), which shall continue its corporate existence under the
laws of Maryland following the consummation of the Merger. At the Effective
Time, the separate existence and corporate organization of First Michigan shall
cease.
ARTICLE 2
EFFECTIVE TIME
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The Merger shall be effective at 11:59 p.m., local Ohio time (the
"Effective Time"), on the "Effective Date," which date shall be the latest of
(i) the day on which Articles of Merger with respect to the Merger have been
filed with the Maryland State Department of Assessments and Taxation in
accordance with the requirements of the laws of the State of Maryland, (ii) the
day on which a Certificate of Merger with respect to the Merger has been filed
with the Administrator of the Corporation, Securities and Land Development
Bureau of the Michigan Department of Consumer and Industry Services, in
accordance with the requirements of the laws of the State of Michigan, or (iii)
such later date as may be specified in such Articles and Certificate of Merger;
provided, however, that the Effective Date shall not be earlier than the date of
the expiration of the last required waiting period following receipt of the last
regulatory approval required in order to consummate the Merger. Unless the
parties shall hereafter agree otherwise in writing, the Effective Date shall be
the same day as the "Closing Date," as such term is defined in the Supplemental
Agreement.
ARTICLE 3
EFFECT OF THE MERGER
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3.1 NAME. The name of the Surviving Corporation shall be
"Huntington Bancshares Incorporated."
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3.2 ARTICLES OF INCORPORATION. The Articles of Incorporation of
Huntington in effect at the Effective Time shall be the articles of
incorporation of the Surviving Corporation, until amended in accordance with
law.
3.3 SEPARATE CORPORATE EXISTENCE; ASSETS; LIABILITIES. At the Effective
Time, the effect of the Merger shall be as provided by the applicable provisions
of the laws of Maryland. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, (i) the separate existence of First
Michigan shall cease; (ii) all assets and property then owned by each
Constituent Corporation, or which would inure to either of them, including all
real, personal, and mixed property, tangible and intangible assets, choses in
action, rights, and credits, and any legacies which either such Constituent
Corporation would have been capable of taking, shall immediately, by operation
of law, transfer to, vest in, and devolve upon the Surviving Corporation,
without any conveyance or further act or deed; (iii) the Surviving Corporation
shall be liable for all the debts and obligations of each Constituent
Corporation; and (iv) the rights of creditors and any liens on the property or
assets of either Constituent Corporation shall not be impaired.
3.4 FURTHER ACTIONS. From time to time, as and when requested by the
Surviving Corporation or by its successors, the officers and directors of First
Michigan in office at the Effective Time shall execute and deliver such
instruments and shall take or cause to be taken such further or other action as
shall be necessary in order to vest or perfect in the Surviving Corporation, or
to confirm of record or otherwise, title to, and possession of, all the assets,
property, interests, rights, privileges, immunities, powers, franchises, and
authority of First Michigan and otherwise to carry out the purposes of this
Agreement.
ARTICLE 4
CONVERSION OF SHARES
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4.1 HUNTINGTON COMMON. All shares of Huntington Common that are
issued and outstanding immediately prior to the Effective Time shall continue to
be issued and outstanding shares of Huntington Common at and after the Effective
Time.
4.2 FIRST MICHIGAN COMMON.
(a) At the Effective Time, the shares of First Michigan Common
issued and outstanding immediately prior to the Effective Time shall be
converted, by virtue of the Merger and without further action on the part of the
holders thereof (collectively, the "First Michigan Shareholders" and,
individually, a "First Michigan Shareholder"), into the right to receive shares
of the Huntington Common, as follows:
(i) Subject to adjustment in accordance with
subparagraph (ii) below, each outstanding share of First Michigan
Common shall be converted into the right to receive 1.05 shares
of Huntington Common (the "Conversion Ratio"); provided, however,
that if both (A) the average of the closing sale prices for a
share of Huntington Common on the five trading days immediately
preceding the date that
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is five trading days prior to the Effective Date (the
"Determination Period"), as reported on the Nasdaq National
Market (the "Average Closing Sale Price"), is less than $22.86
(the "Huntington Floor Price"), and (B) the quotient obtained by
dividing the average of the "Standard & Poors Regional Bank Stock
Index" (the "S&P Index") for the Determination Period by 355.87
is greater than the quotient obtained by dividing the Average
Closing Sale Price by $28.575 (the "Huntington Base Price"), and
the difference between such quotients is greater than 0.15, then
the Constituent Corporations shall use their best efforts to
renegotiate the Conversion Ratio, and if the Constituent
Corporations are unable to agree on a revised Conversion Ratio,
then this Agreement and the Supplemental Agreement shall be
terminated in accordance with the terms of the Supplemental
Agreement.
(ii) If the sum of the number of shares of First
Michigan Common outstanding at the Effective Time plus the number
of shares of First Michigan Common that are subject to
outstanding First Michigan Stock Options as of the Effective Time
differs from 28,848,791 shares, the Conversion Ratio will be
automatically adjusted by multiplying the original Conversion
Ratio by the quotient obtained by dividing 28,848,791 by the sum
of the number of shares of First Michigan Common issued and
outstanding on the Effective Date plus the number of shares
subject to the outstanding First Michigan Stock Options on the
Effective Date; provided, however, that, in performing any such
adjustment, the Conversion Ratio will be rounded to the nearest
hundredth of a share of Huntington Common.
(iii) In the event that Huntington changes (or
establishes a record date for changing) the number of shares of
Huntington Common issued and outstanding as a result of a stock
dividend, stock split, recapitalization, or similar transaction
with respect to the outstanding shares of Huntington Common
(collectively, a "Huntington Recapitalization"), and the record
date therefor shall be after the date of this Agreement and prior
to the Effective Time, then the Conversion Ratio shall be
adjusted appropriately. In the event of a reclassification of the
outstanding shares of Huntington Common or a consolidation or
merger of Huntington with or into another corporation, other than
a merger in which Huntington is the surviving corporation and
which does not result in any reclassification, conversion, or
exchange of shares of Huntington Common, holders of First
Michigan Common shall receive, in lieu of each share of
Huntington Common to be issued in exchange for each share or
portion of a share of First Michigan Common pursuant to the terms
hereof, the kind and amount of securities, money, property, or
other consideration receivable upon such reclassification,
consolidation, or merger by holders of Huntington Common with
respect to shares of Huntington Common outstanding immediately
prior to such reclassification, consolidation, or merger.
(iv) In the event that a Huntington
Recapitalization occurs, or Huntington establishes a record date
for such a Huntington Recapitalization, prior to the expiration
of the Determination Period, the Huntington Floor Price and the
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Huntington Base Price set forth in the subparagraph (i) above
shall also be adjusted appropriately.
(v) No fractional shares of Huntington Common
shall be issued. Each holder of First Michigan Common who would
otherwise be entitled to receive a fractional part of a share of
Huntington Common shall instead be entitled to receive cash in an
amount equal to the product resulting from multiplying such
fraction by the Average Closing Sale Price. No interest shall be
payable with respect to such cash payment.
(b) Any and all shares of First Michigan Common held by First
Michigan, Huntington, or any direct or indirect majority-owned subsidiary of
either of them, in each case other than in a fiduciary capacity or as a result
of debts previously contracted, shall be canceled and retired at the Effective
Time and no consideration shall be issued in exchange therefor.
(c) Each unexercised First Michigan Stock Option that is
outstanding immediately prior to the Effective Time shall be converted
automatically at the Effective Time into an option to purchase shares of
Huntington Common under the Huntington 1994 Stock Option Plan or similar
Huntington plan (a "Huntington Stock Option"), with the number of shares of
Huntington Common to be subject to a particular Huntington Stock Option to be
determined by converting the number of shares of First Michigan Common subject
to the First Michigan Stock Option into a number of Huntington Common shares in
accordance with the procedure for converting outstanding First Michigan Common
shares into Huntington Common shares as set forth in paragraph 4.2(a) hereof,
except that all fractional shares will be rounded to the nearest whole share,
and with the exercise price for each share of Huntington Common subject to a
particular Huntington Stock Option to be equal to the exercise price per First
Michigan Common share under the First Michigan Stock Option divided by the
Conversion Ratio determined in accordance with paragraph 4.2(a)(i) above;
provided, however, that, in the case of any First Michigan Stock Option to which
Section 421 of the Internal Revenue Code of 1986, as amended (the "Code"),
applies by reason of its qualification under Section 422 of the Code, the terms
of the Huntington Stock Option into which such First Michigan Stock Option is to
be converted, including the option price, the number of shares of Huntington
Common purchasable pursuant to such option, and the terms and conditions of
exercise of such option, shall be determined so as to comply with Section 424(a)
of the Code. Upon such conversion, all rights under any and all stock options
and stock option plans previously granted or adopted by First Michigan shall
terminate. The Constituent Corporations understand and acknowledge that the
First Michigan Stock Options granted pursuant to the First Michigan Stock
Compensation Plan and the First Michigan 1987 Stock Option Plan will all be
fully vested at or prior to the Effective Time, either by their terms or by
operation of the First Michigan Stock Option Plans as a result of the
consummation of the Merger and effective as of the Effective Time.
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ARTICLE 5
EXCHANGE OF CERTIFICATES
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(a) As promptly as practicable after the Effective Date but
not later than ten (10) business days after the Effective Date, Huntington shall
cause The Huntington National Bank (the "Exchange Agent") to prepare and mail to
each holder of record on the Effective Date of any shares of First Michigan
Common a letter of transmittal containing instructions for the surrender of all
certificates for shares of First Michigan Common. Upon the surrender by such
holder of a certificate or certificates for shares of First Michigan Common
standing in such holder's name to the Exchange Agent in accordance with the
instructions set forth in the letter of transmittal, such holder shall be
entitled to receive in exchange therefor a certificate representing the number
of whole shares of Huntington Common into which the shares represented by the
certificate or certificates so surrendered shall have been converted and, if
applicable, a check payable to such holder in the amount necessary to pay for
any fractional shares of Huntington Common which such holder would otherwise
have been entitled to receive, in accordance with subsection 4.2(a)(v) hereof.
Huntington shall deliver to the Exchange Agent such share certificates for whole
shares of Huntington Common and the amount of cash necessary to pay for all
fractional shares of Huntington Common in accordance with subsection 4.2(a)(v)
hereof in order to permit the Exchange Agent to promptly deliver such
certificates and cash to the holders of shares of First Michigan Common upon its
receipt of certificates representing shares of First Michigan Common. No
interest shall be payable with respect to either the whole shares of Huntington
Common or the cash payable in lieu of fractional shares. Immediately after the
third anniversary of the Effective Date, the Exchange Agent shall deliver to the
Surviving Corporation any unclaimed balance of cash owing with respect to
fractional shares and such cash shall be retained by, and become the property of
the Surviving Corporation, free and clear of any claims whatsoever.
(b) Neither the Surviving Corporation nor the Exchange Agent
shall be obligated to deliver a certificate for Huntington Common or a check for
cash in lieu of fractional shares to a former shareholder of First Michigan
until such former shareholder surrenders the certificate or certificates
representing shares of First Michigan Common standing in such former
shareholder's name or, if such former shareholder is unable to locate such
certificate or certificates, an appropriate affidavit of loss and indemnity
agreement and bond as may be required by Huntington. Until so surrendered, each
outstanding certificate for shares of First Michigan Common shall be deemed for
all corporate purposes (except the payment of dividends) to evidence ownership
of the number of whole shares of Huntington Common into which the shares of
First Michigan Common represented thereby shall have been converted.
(c) After the Effective Date, no dividends or distributions
payable to holders of record of Huntington Common shall be paid to any holder of
an outstanding certificate or certificates formerly representing shares of First
Michigan Common until such certificate(s) are surrendered by such holder in
accordance with the terms of this Agreement. Promptly upon surrender of such
outstanding certificate(s), there shall be paid to such holder of the
certificate or certificates for Huntington Common issued in exchange therefor
the amount of dividends and other distributions, if any, which theretofore
became payable with respect to such full shares of Huntington Common, but which
have not theretofore been paid on such stock. No interest shall
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be payable with respect to the payment of any dividends or other distributions.
All such dividends or other distributions unclaimed at the end of three years
from the Effective Date shall, to the extent such dividends have been previously
paid to the Exchange Agent, be repaid by the Exchange Agent to Huntington, and
thereafter the holders of such outstanding certificates for First Michigan
Common shall look, subject to applicable escheat, unclaimed funds, and other
laws, only to Huntington as general creditors for payment thereof.
(d) The stock transfer books of First Michigan shall be closed
as of the close of business on the day that is one business day prior to the
Effective Date. After such date, there shall be no further registration on the
records of First Michigan of transfers of outstanding certificates formerly
representing shares of First Michigan Common.
(e) Huntington is empowered to adopt additional reasonable
rules and regulations with respect to the matters referred to in this Article 5
not inconsistent with the provisions of this Agreement.
(f) Adoption of this Agreement by the shareholders of First
Michigan shall constitute ratification of the appointment of the Exchange Agent.
ARTICLE 6
SHAREHOLDER APPROVAL
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This Agreement shall be submitted to the shareholders of Huntington and
First Michigan for approval in accordance with applicable law and their
respective Governing Documents as soon as reasonably practicable following the
execution of this Agreement.
ARTICLE 7
MISCELLANEOUS PROVISIONS
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7.1 AMENDMENT. At any time prior to the Effective Time, the parties
hereto may amend, modify, or supplement this Agreement by mutual agreement
authorized by their respective boards of directors, whether before or after the
shareholders of First Michigan have adopted this Agreement, provided that the
number of shares of Huntington Common into which shares of First Michigan Common
are to be converted as determined in paragraph 4.2(a) hereof shall not be
changed after the shareholders of First Michigan have adopted this Agreement
without the approval of such shareholders in the same manner as required for the
adoption of this Agreement; and provided, further, that this Agreement may not
be amended, modified, or supplemented, except by an instrument in writing
executed and delivered by each of the parties hereto.
7.2 TERMINATION. Unless extended by the mutual agreement of the parties
hereto, this Agreement may be terminated, notwithstanding the adoption thereof
by the shareholders of Huntington or First Michigan in the manner and under the
circumstances set forth in the Supplemental Agreement.
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7.3 ENTIRE AGREEMENT. This Agreement, together with the Supplemental
Agreement and any exhibits hereto or thereto, constitutes the entire agreement
among the parties with respect to the subject matter hereof and thereof and
supersedes all prior agreements and understandings, oral or written, among the
parties with respect to such subject matter and no party shall be liable or
bound to the others in any manner by any covenants, representations, or
warranties except as specifically set forth herein or therein.
7.4 CAPTIONS. The captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
7.5 ASSIGNMENT. Neither this Agreement nor any rights, interests, or
obligations hereunder shall be assigned or transferred by operation of law or
otherwise by any of the parties hereto without the prior written consent of the
other parties.
7.6 BENEFIT. Nothing in this Agreement, express or implied, is intended
to confer upon any person or entity other than the parties hereto and their
successors in interest any rights or remedies under or by reason of this
Agreement.
7.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original for all purposes, but
such counterparts taken together shall constitute one and the same instrument.
7.8 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio without regard to its conflict of
laws principles, except to the
THIS SPACE INTENTIONALLY LEFT BLANK
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extent that Maryland law governs certain aspects of the Merger as it relates to
Huntington or Michigan law governs certain aspects of the Merger as it relates
to First Michigan.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HUNTINGTON BANCSHARES INCORPORATED
By: /s/ Frank Wobst
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Frank Wobst, Chairman and Chief Executive Officer
FIRST MICHIGAN BANK CORPORATION
By: /s/ David M. Ondersma
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David M. Ondersma, Chairman and Chief Executive
Officer
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