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EXHIBIT 2(c)
WARRANT PURCHASE AGREEMENT
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THIS WARRANT PURCHASE AGREEMENT (this "Agreement") is made as of May
22, 1997, between HUNTINGTON BANCSHARES INCORPORATED, a Maryland corporation
("Huntington"), and THE BANK OF WINTER PARK, a Florida banking corporation
("Winter Park Bank").
RECITALS
A. Concurrently herewith, The Huntington National Bank, a national
banking association that is a wholly owned subsidiary of Huntington ("Huntington
Bank"), and Winter Park Bank have entered into a certain Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), and Huntington,
Huntington Bank, and Winter Park Bank have entered into a Supplemental
Agreement, dated as of the date hereof (the "Supplemental Agreement"), which
provide for the merger of Winter Park Bank into Huntington Bank (the "Merger").
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 assigned to them
in the Merger Documents.
B. As a condition to Huntington's and Huntington Bank's entering into
the Merger Documents and in consideration therefor, Winter Park Bank has agreed
to issue to Huntington a warrant or warrants entitling Huntington to purchase up
to a total of 102,856 shares of Winter Park Common, on the terms and conditions
set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1. ISSUANCE, DELIVERY, AND EXERCISE OF THE WARRANT.
Concurrently with the execution of the Merger Documents and this Agreement,
Winter Park Bank shall execute a warrant in favor of Huntington in the form
attached as Attachment 1 hereto (the "Warrant") to purchase up to a total of
102,853 shares of Winter Park Common at a purchase price equal to $30.00 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. Promptly after the date hereof, the parties shall
apply to the Florida Department of Banking and Finance (the "Florida Banking
Department") for approval of the issuance of the Warrant and the parties agree
to use their best efforts to obtain such approval. Upon its execution thereof,
Winter Park Bank shall deliver the Warrant to Shutts & Bowen, acting as escrow
agent for the parties, to be held by Shutts & Bowen in escrow until such time as
the Florida Banking Department shall have approved the Warrant, whereupon Shutts
& Bowen shall promptly deliver the Warrant to Huntington. If the Warrant is
disapproved by the Florida Banking Department or is not approved by the Florida
Banking Department prior to the termination of the Warrant in accordance with
its terms, Shutts & Bowen shall thereupon return the Warrant to Winter Park
Bank. The parties hereby agree that Shutts & Bowen shall have no liability to
any party in connection with the performance of its responsibilities as escrow
agent hereunder except for gross negligence or willful misconduct in the
performance of such obligations.
SECTION 2. REGISTRATION RIGHTS. If, at any time after the Warrant
becomes exercisable in accordance with its terms, Winter Park Bank shall receive
a written request therefor from the Holder, Winter Park Bank shall prepare and
file a registration statement under 12 C.F.R. Part 335 (the "Registration
Provisions") if necessary in the opinion of counsel for the Holder in order to
permit the sale or other disposition of any or all shares of Winter Park Common
that have been acquired by the Holder pursuant to an exercise of the Warrant in
accordance with the intended method of sale or other disposition stated by the
Holder in such request. The registration statement shall cover at least such
number of shares of Winter Park Common as the Holder shall specify in the
request and shall use its best efforts
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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 Winter Park Bank nor any
other holder of securities of Winter Park Bank may include securities in such
registration.
SECTION 3. "PIGGYBACK" RIGHTS. If, at any time after the Warrant
becomes exercisable in accordance with its terms, Winter Park Bank shall
determine to proceed with the preparation and filing of a registration statement
under the Registration Provisions 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 in
connection with an acquisition where Winter Park is the surviving corporation
and uses Winter Park Common shares as consideration) by it or any of its
security holders, Winter Park Bank 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 Winter Park Bank, Winter Park Bank shall, except
as herein provided, cause all shares of Winter Park Common which the Holder
shall request be included in such registration statement to be so included;
provided, however, that nothing herein shall prevent Winter Park Bank from
abandoning or delaying any registration at any time; and provided, further, that
if Winter Park Bank decides not to proceed with a registration after the
registration statement has been filed with the appropriate regulatory agency and
Winter Park Bank's decision not to proceed is primarily based upon the
anticipated public offering price of the securities to be sold by Winter Park
Bank, Winter Park Bank shall promptly complete the registration for the benefit
of the Holder if the Holder agrees to bear all additional and incremental
expenses incurred by Winter Park Bank as the result of such registration after
Winter Park Bank 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 Winter Park 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 Winter Park 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 Winter Park Bank, 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 Winter Park
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 WINTER PARK BANK IN CONNECTION WITH A
REGISTRATION. If and whenever Winter Park Bank is required by the provisions of
Sections 2 or 3 hereof to effect the registration of any shares of Winter Park
Common under the Registration Provisions, Winter Park Bank shall:
(a) prepare and file with the appropriate regulatory agency a
registration statement with respect to such securities and use its best efforts
to cause such registration statement to become and remain effective for such
period as may be reasonably necessary to effect the sale of such securities, not
to exceed nine months;
(b) prepare and file with the appropriate regulatory agency
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 Winter Park Bank shall not be required by virtue hereof
to submit to the general jurisdiction of any state;
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(e) notify the Holder, promptly after Winter Park Bank 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
appropriate regulatory agency for the amending or supplementing of such
registration statement or prospectus or for additional information;
(g) prepare and file with the appropriate regulatory agency,
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 Winter Park Bank), is required under the
Regulatory Provisions or the rules and regulations promulgated thereunder in
connection with the distribution of the shares of Winter Park Common by the
Holder;
(h) prepare and promptly file with the appropriate regulatory
agency 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 Regulatory Provisions, 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
appropriate regulatory agency 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 Winter Park Bank for the purposes of such registration,
addressed to the underwriters and to the Holder, covering such matters as such
underwriters and the Holder may reasonably request and as are customarily
covered by issuer's counsel at that time; and (ii) a letter or letters from the
independent certified public accountants of Winter Park Bank, 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 Registration Provisions
and that, in the opinion of such accountants, the financial statements and other
financial data of Winter Park Bank included in the registration statement or any
amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Registration Provisions.
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 Winter Park Common in a registration statement pursuant to Section 3
hereof, Winter Park Bank 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 Winter Park Bank, fees and
disbursements of counsel for the underwriter or underwriters of such securities
(if Winter Park Bank 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 Winter Park 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) Winter Park Bank shall indemnify and hold harmless the
Holder, any underwriter (as defined in the Registration Provisions) for the
Holder, and each person, if any, who controls the Holder or such underwriter
within the meaning of the Registration Provisions, 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 Registration
Provisions or otherwise, insofar as such losses, damages, liabilities, costs, or
expenses are caused by any untrue statement or alleged
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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 Winter Park Bank 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 and Winter Park Bank and each officer, director, and
controlling person of Winter Park Bank shall be indemnified by Holder or by such
underwriter, as the case may be, for all such losses, damages, liabilities,
costs, or expenses caused by any untrue or alleged untrue statement that was
included by Winter Park Bank in any such registration statement or any
prospectus or preliminary prospectus contained therein, or any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to Winter Park Bank by Holder or such underwriter, as the
case may be, expressly for such use.
(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 Winter Park Bank pursuant to the provision of such paragraph (a),
promptly notify Winter Park Bank of the commencement thereof; but the omission
to so notify Winter Park Bank will not relieve it from any liability which it
may have to any indemnified party otherwise hereunder. In case such action is
brought against any indemnified party and such indemnified party notifies Winter
Park Bank of the commencement thereof, Winter Park Bank 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
Winter Park Bank and there is a conflict of interest which would prevent counsel
for Winter Park Bank 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 Winter Park Bank 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 Winter Park Bank 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) Winter Park Bank 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)
Winter Park Bank has authorized the employment of counsel for the indemnified
party at the expense of Winter Park Bank.
(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 the Registration Provisions. 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) Winter Park Bank may, and upon the written request of the
Holder, Winter Park Bank shall, repurchase the Warrant from the Holder
at a price (the "Warrant Repurchase Price") equal to the difference
between the "Market/Offer Price" (as defined in paragraph (b) below)
and the Exercise Price, multiplied by the number of shares for which
the Warrant may then be exercised, in the aggregate, but only if the
Market/Offer Price is greater than the Exercise Price; and
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(ii) Winter Park Bank may, and upon the written request of the
owner (the "Owner") of any shares of Winter Park Common purchased
pursuant to an exercise of the Warrant ("Warrant Stock"), Winter Park
Bank shall, repurchase all of the shares of Warrant Stock held by such
Owner at a price (the "Warrant Stock Repurchase Price") equal to the
number of shares to be repurchased hereunder multiplied by the greater
of the Exercise Price and the Market/Offer Price.
(b) For purposes of 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 Winter Park Common has been made,
(ii) the price per share of Winter Park Common to be paid by any third party
pursuant to an agreement with Winter Park Bank, and (iii) the highest closing
price for shares of Winter Park 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 Winter Park 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 Winter Park Bank to repurchase the Warrant or the Warrant
Stock pursuant to this Section 7 by surrendering for such purpose to Winter Park
Bank, 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 Winter Park
Bank 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, Winter
Park Bank 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 Winter Park Bank is not then prohibited
under applicable law and regulation from so delivering.
(d) To the extent that Winter Park Bank 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, Winter Park Bank 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 Winter Park Bank
is no longer so prohibited. Upon receipt of such notice from Winter Park Bank
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
Winter Park Bank at its principal office stating that the Holder and/or the
Owner elects to revoke its election to exercise its right to require Winter Park
Bank to repurchase the Warrant and/or Warrant Stock, whereupon Winter Park Bank
will promptly deliver to the Holder and/or Owner the Warrant and/or certificates
representing shares of Warrant Stock surrendered to Winter Park Bank for
purposes of such repurchase. Whether or not such election is revoked, Winter
Park Bank hereby agrees to use its best efforts to obtain all required legal and
regulatory approvals necessary to permit Winter Park Bank to repurchase the
Warrant and/or the Warrant Stock as promptly as practicable.
SECTION 8. ASSIGNMENT; ASSUMPTION OF OBLIGATIONS UNDER THIS AGREEMENT.
Neither this Agreement nor any of the rights, interests, or obligations
hereunder or under the Warrant shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written consent of
the other party, except that Holder may assign its rights hereunder (A) in whole
but not in part to any affiliate of Holder included in its consolidated group at
any time and (B) in whole or in part after the occurrence of any event described
in paragraph 1(a) of the Warrant as a result of which the Warrant shall be
exercisable. Winter Park Bank 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 Winter Park
Bank hereunder.
SECTION 9. REMEDIES. Without limiting the foregoing or any remedies
available to the Holder, Winter Park Bank specifically acknowledges that neither
Huntington nor any successor holder of the Warrant would have an
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adequate remedy at law for any breach of this Warrant Purchase Agreement and
Winter Park Bank hereby agrees that Huntington and any successor holder of the
Warrant shall be entitled to specific performance of the obligations of Winter
Park Bank 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
THE BANK OF WINTER PARK
By: /s/ Robert S. Harrell
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Robert S. Harrell, Chairman
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