1
Exhibit 2(d)
THIS WARRANT AND THE COMMON SHARES 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
-------
TO PURCHASE 5,268,716 COMMON SHARES
OF
FIRST MICHIGAN BANK CORPORATION
This is to certify that, for value received, HUNTINGTON BANCSHARES
INCORPORATED, a Maryland corporation ("Huntington"), is entitled to purchase
from FIRST MICHIGAN BANK CORPORATION, a Michigan corporation ("First Michigan"),
at any time on or after the date hereof, an aggregate of up to 5,268,716 common
shares, $1.00 par value per share, of First Michigan ("First Michigan Common"),
at a price of $29.275 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 First Michigan (the "Warrant Purchase
Agreement"). The number of shares of First Michigan 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 Agreement and Plan of Merger,
dated as of the date hereof, between Huntington and First Michigan (the "Merger
Agreement"), which provides for the merger of First Michigan into Huntington
(the "Merger"), and a certain Supplemental Agreement between Huntington and
First Michigan, which provides 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. The
term "Holder" shall mean and refer to Huntington or any successor holder of this
Warrant.
SECTION 1. EXERCISE OF THE WARRANT.
(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 conditions
set forth in this Warrant and in the Warrant Purchase Agreement and the
provisions of
2
applicable law, the Holder will not exercise this Warrant without the written
consent of First Michigan except upon the occurrence of any of the following
events (a "Triggering Event"):
(i) any material, willful, and intentional breach of the
Merger Documents by First Michigan that would permit
Huntington to terminate the Merger Documents (A)
occurring after the receipt by First Michigan of a
proposal to engage in an Acquisition Transaction, (B)
occurring after the announcement by any other Person of
an intention to engage in an Acquisition Transaction, or
(C) in anticipation and for the purpose of engaging in an
Acquisition Transaction;
(ii) (A) a proposal to engage in an Acquisition Transaction is
submitted to and approved by the shareholders of First
Michigan at any time prior to May 31, 1999, or (B) a
Tender Offer is commenced and the transactions
contemplated in the Tender Offer are completed in such a
manner that the Person making the Tender Offer acquires
beneficial ownership of more than 20 percent of the
capital stock or any other class of voting securities of
First Michigan, and the Merger is not consummated prior
to May 31, 1999;
(iii) (A) a proposal to engage in an Acquisition Transaction is
received by First Michigan or a Tender Offer is made
directly to the shareholders of First Michigan or the
intention of making an Acquisition Transaction or Tender
Offer is announced at any time prior to the holding of
the First Michigan Shareholders' Meeting; (B) the Board
of Directors of First Michigan (1) fails to recommend to
the shareholders of First Michigan that they vote their
shares of First Michigan Common in favor of the approval
of the Merger, (2) withdraws such recommendation
previously made, (3) fails to solicit proxies of
shareholders of First Michigan to approve the Merger, or
(4) fails to hold the First Michigan Shareholders'
Meeting; and (C) the Merger is not consummated by May 31,
1999;
(b) Notwithstanding the foregoing, this Warrant shall not be
exercisable in the event of the failure to consummate the Merger solely as a
result of any of the following: (i) the failure of the shareholders of
Huntington to approve the Merger; (ii) the failure of any Regulatory Authority
to provide any required Consent to the Merger, which failure was not the result
of the existence of the Acquisition Proposal or a breach by First Michigan of
any of its obligations under any of the Merger Documents; or (iii) the Merger
Documents are terminated pursuant to Section 9.1 of the Supplemental Agreement,
unless the event giving rise to the right to terminate is preceded by
- 2 -
3
a Triggering Event or the receipt by First Michigan of an Acquisition
Transaction proposal, or the announcement by another Person of a proposal
involving an Acquisition Transaction.
(c) An "Acquisition Transaction" shall mean a transaction
involving (A) the sale or other disposition of more than 20 percent of the
shares of the capital stock or any other class of voting securities of First
Michigan, including, but not limited to, a Tender Offer, (B) the sale or other
disposition of 15 percent or more of the consolidated assets or deposits of
First Michigan or of the banks owned by First Michigan, in the aggregate, or (C)
a merger or consolidation involving First Michigan other than a transaction
pursuant to which First Michigan will be the surviving corporation and the
current shareholders of First Michigan will be the owners of a majority of the
stock of the surviving corporation following the transaction. 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.
(d) This Warrant shall be exercised by presentation and
surrender hereof to First Michigan at its principal office accompanied by (i) a
written notice of exercise for a specified number of shares of First Michigan
Common, (ii) payment to First Michigan, for the account of First Michigan, of
the Exercise Price for the number of shares specified in such notice, and (iii)
a certificate of the Holder indicating the Triggering Event that has occurred
which entitles the Holder to exercise this Warrant. The Exercise Price for the
number of shares of First Michigan Common specified in the notice shall be
payable in immediately available funds.
(e) Upon such presentation and surrender, First Michigan shall
issue promptly (and within three business days if requested by the Holder) to
the Holder, or any assignee, transferee, or designee permitted by subparagraph
(g) of this Section 1, the shares to which the Holder is entitled hereunder.
(f) If this Warrant should be exercised in part only, First
Michigan 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 First Michigan
of this Warrant, in proper form for exercise, the Holder shall be deemed to be
the holder of record of the shares of First Michigan Common issuable upon such
exercise, notwithstanding that the stock transfer books of First Michigan shall
then be closed or that certificates representing such shares of First Michigan
Common shall not then be actually delivered to the Holder. First Michigan 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 (g) of this
Section 1.
(g) 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.
- 3 -
4
SECTION 2. CERTAIN COVENANTS AND REPRESENTATIONS OF FIRST MICHIGAN.
(a) First Michigan shall at all times maintain sufficient
authorized but unissued shares of First Michigan Common so that this Warrant may
be exercised without additional authorization of the holders of First Michigan
Common, after giving effect to all other options, warrants, convertible
securities, and other rights to purchase First Michigan Common.
(b) First Michigan represents and warrants to the Holder that
the shares of First Michigan Common issued upon an exercise of this Warrant will
be duly authorized, fully paid, non-assessable, and subject to no preemptive
rights.
(c) First Michigan 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 First Michigan; (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. ss.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 Federal Reserve Board 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 or transfer
this Warrant and First Michigan 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. First Michigan shall not be required to
issue fractional shares of First Michigan 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 First Michigan for other Warrants of different
denominations entitling the Holder thereof to purchase in the aggregate the same
number of shares of First Michigan Common purchasable hereunder. The term
"Warrant" as used herein includes any warrants for which this Warrant may be
exchanged. Upon receipt by First Michigan 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, First
Michigan 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 First Michigan, whether or not the Warrant so lost,
stolen, destroyed, or mutilated shall at any time be enforceable by anyone.
- 4 -
5
SECTION 5. CERTAIN TRANSACTIONS.
(a) In case First Michigan 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
First Michigan and First Michigan shall be the continuing or surviving
corporation, but, in connection with such merger, the then outstanding shares of
First Michigan 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, First
Michigan, 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 i i
continuing or surviving corporation of a consolidation or merger
with First Michigan (if other than First Michigan), (B) the
corporation merging into First Michigan in a merger in which
First Michigan is the continuing or surviving person and in
connection with which the then outstanding shares of First
Michigan Common are changed into or exchanged for stock or other
securities of any other Person or cash or any other property, or
(C) the transferee of all or substantially all of First
Michigan's assets;
(ii) "Substitute Common" 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 First Michigan'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 First Michigan as determined by a recognized investment
banking firm selected by the Holder, divided by the number of
shares of First Michigan Common outstanding at the time of such
sale;
(iv) "Average Price" shall mean the average
closing price of a share of Substitute Common 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 on the day preceding such
consolidation, merger, or sale; provided that if First Michigan
is the issuer of the Substitute
- 5 -
6
Warrant, the Average Price shall be computed with respect to a
share of the common stock issued by the Person merging into First
Michigan 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 as is equal to the Assigned Value
multiplied by the number of shares of First Michigan 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 shall be equal to the
Exercise Price multiplied by a fraction in which the numerator is the number of
shares of First Michigan Common for which this Warrant is then exercisable and
the denominator is the number of shares of Substitute Common for which the
Substitute Warrant is exercisable.
SECTION 6. RIGHTS OF THE HOLDER; REMEDIES.
(a) The Holder shall not, by virtue hereof and prior to the
exercise hereof, be entitled to any rights of a holder of First Michigan Common.
(b) Without limiting the foregoing or any remedies available
to the Holder, First Michigan 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 First Michigan hereby agrees that Huntington
and any successor Holder shall be entitled to specific performance of the
obligations of First Michigan hereunder and injunctive relief against actual or
threatened violations of the provisions hereof.
SECTION 7. ANTIDILUTION PROVISIONS. The number of shares of First
Michigan 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 First Michigan issues any additional
shares of First Michigan Common at any time after the date hereof (including
pursuant to stock option plans), the number of
- 6 -
7
shares of First Michigan Common which can be purchased pursuant to this Warrant
shall be increased by an amount equal to 19.9 percent of the additional shares
so issued.
(b) (i) In the event that, after the date hereof,
First Michigan pays or makes a dividend or other distribution of
any class of capital stock of First Michigan in First Michigan
Common (including, but not limited to, the issuance of the First
Michigan 1997 Stock Dividend), the number of shares of First
Michigan 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 First
Michigan 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 First Michigan Common are subdivided into a
greater number of shares of First Michigan Common, the number of
shares of First Michigan 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 First Michigan Common are combined
into a smaller number of shares of First Michigan Common, the
number of shares of First Michigan 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.
(iii) The reclassification (including any
reclassification upon a merger in which First Michigan is the
continuing corporation) of First Michigan Common into securities
including other than First Michigan Common shall be deemed to
involve a subdivision or combination, as the case may be, of the
number of shares of First Michigan Common outstanding immediately
prior to such reclassification into the number of shares of First
Michigan 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.
(c) Whenever the number of shares of First Michigan 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 First
Michigan Common purchasable prior to the adjustment and the denominator of which
is equal to the number of shares of First Michigan Common purchasable after the
adjustment; provided, however, that no such adjustment of the Exercise Price
shall be made with respect to the
- 7 -
8
adjustment in the number of shares purchasable upon exercise hereof to be made
pursuant to paragraph (b) above upon the issuance of the First Michigan 1997
Stock Dividend.
(d) For the purpose of this Section 7, the term "First
Michigan Common" shall include any shares of First Michigan 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 First Michigan and which is not subject to
redemption by First Michigan.
SECTION 8. NOTICE.
(a) Whenever the number of shares of First Michigan Common for
which this Warrant is exercisable is adjusted as provided in Section 7 hereof,
First Michigan shall promptly compute such adjustment and mail to the Holder a
certificate, signed by a principal financial officer of First Michigan, setting
forth the number of shares of First Michigan 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 a Triggering Event First Michigan
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
First Michigan setting forth the Warrant Repurchase Price and/or the Warrant
Stock Repurchase Price and the basis and computation thereof.
(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, First Michigan 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 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 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 a
Triggering Event; (ii) the Effective Date of the Merger, (iii) the date of
termination of the Merger Documents unless the event giving rise to the right to
terminate is preceded by a Triggering Event or the receipt by First Michigan, or
the
- 8 -
9
announcement by another person, of a proposal involving an Acquisition
Transaction or Tender Offer; or (iv) May 31, 1999.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of
this 5th day of May, 1997.
ATTEST: FIRST MICHIGAN BANK CORPORATION
By: /s/ Stephen A. Stream By: /s/ David M. Ondersma
------------------------------ -----------------------------------
David M. Ondersma, Chairman and
Title: Secretary Chief Executive Officer
---------------------------
- 9 -