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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 102,856 SHARES OF THE COMMON STOCK
OF
THE BANK OF WINTER PARK
This is to certify that, for value received, HUNTINGTON BANCSHARES
INCORPORATED, a Maryland corporation ("Huntington"), is entitled to purchase
from THE BANK OF WINTER PARK, a Florida banking corporation ("Winter Park
Bank"), at any time on or after the date hereof, an aggregate of up to 102,856
shares of the common stock, $5.00 par value per share, of Winter Park Bank
("Winter Park Common"), at a price of $30.00 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 Winter Park
Bank (the "Warrant Purchase Agreement"). The number of shares of Winter Park
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 The Huntington National Bank, a
national banking association which is a wholly owned subsidiary of Huntington
("Huntington Bank"), and Winter Park Bank (the "Merger Agreement"), and a
certain Supplemental Agreement, dated as of the date hereof, among Huntington,
Huntington Bank, and Winter Park Bank (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. 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 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 applicable law, the Holder will not
exercise this Warrant without the written consent of Winter Park Bank, except
upon the occurrence of any of the following events (the events described in each
of the subparagraphs enumerated below shall together constitute a single event
for the purposes hereof):
(i) any material breach of the Merger Documents by
Winter Park Bank which would permit Huntington to terminate the Merger
Documents;
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(ii) prior to the meeting of the Winter Park Bank 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 Winter Park Bank relating to (A) 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 Winter Park Bank,
including, but not limited to, an exchange or tender offer therefor,
(B) the possible sale or other disposition of 15% or more of the
assets of Winter Park Bank, or (C) a merger or consolidation involving
Winter Park Bank, other than a transaction pursuant to which Winter
Park Bank will be the surviving corporation and the current
shareholders of Winter Park Bank will be the owners of a majority of
the stock of the surviving corporation following the transaction (any
such proposal being referred to herein as an "Acquisition Proposal")
and, within 18 months after the date hereof, Winter Park Bank 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 Winter Park Bank if, after giving effect to such offer,
such person or group would own or have the right to acquire a majority
equity interest in Winter Park Bank (a "Tender Offer"), and such
equity interest is acquired pursuant to such Tender Offer within 18
months after the date hereof; or
(iv) Winter Park Bank 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 Winter Park Bank at its principal office accompanied by (i)
a written notice of exercise for a specified number of shares of Winter Park
Common, (ii) payment to Winter Park Bank, for the account of Winter Park Bank,
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 Winter Park Common specified in the notice shall be payable
in immediately available funds.
(d) Upon such presentation and surrender, Winter Park Bank
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, Winter
Park Bank 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 Winter Park
Bank of this Warrant, in proper form for exercise, the Holder shall be deemed to
be the holder of record of the shares of Winter Park Common issuable upon such
exercise, notwithstanding that the stock transfer books of Winter Park Bank
shall then be closed or that certificates representing such shares of Winter
Park Common shall not then be actually delivered to the Holder. Winter Park Bank
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 pursuant to all
applicable laws and regulations, to the extent required.
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SECTION 2. CERTAIN COVENANTS AND REPRESENTATIONS OF WINTER PARK BANK.
(a) Winter Park Bank shall at all times maintain sufficient
authorized but unissued shares of Winter Park Common so that this Warrant may be
exercised without additional authorization of the holders of Winter Park Common,
after giving effect to all other options, warrants, convertible securities, and
other rights to purchase Winter Park Common.
(b) Winter Park Bank represents and warrants to the Holder
that, to the extent that the issuance and exercise of this Warrant is permitted
under Florida law and, if the approval of the Florida Department of Banking and
Finance is required in order to issue either the Warrant or the shares of Winter
Park Common to be issued upon an exercise of the Warrant, to the extent that the
issuance of such Warrant or such shares has been approved by the Florida
Department of Banking and Finance, the shares of Winter Park Common issued upon
an exercise of this Warrant will be duly authorized, fully paid, non-assessable,
and subject to no preemptive rights.
(c) Winter Park Bank 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 Winter Park Bank; (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, cooperating 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 Winter Park Bank 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. Winter Park Bank shall not be required to
issue fractional shares of Winter Park 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 Winter Park Bank for other Warrants of
different denominations entitling the Holder thereof to purchase in the
aggregate the same number of shares of Winter Park Common purchasable hereunder.
The term "Warrant" as used herein includes any warrants for which this Warrant
may be exchanged. Upon receipt by Winter Park Bank 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, Winter Park Bank will execute and deliver a new Warrant
of like tenor and date.
SECTION 5. CERTAIN TRANSACTIONS.
(a) In case Winter Park Bank 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 Winter Park Bank and Winter Park Bank shall be the continuing or surviving
corporation, but, in connection with such merger, the then outstanding shares of
Winter Park 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, Winter Park
Bank, in which case such warrant shall be a newly issued warrant (in any such
case, the "Substitute Warrant").
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(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 Winter Park
Bank (if other than Winter Park Bank), (B) the corporation merging
into Winter Park Bank in a merger in which Winter Park Bank is the
continuing or surviving person and in connection with which the then
outstanding shares of Winter Park 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 Winter
Park Bank'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 Winter Park Bank'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 Winter Park Bank
as determined by a recognized investment banking firm selected by the
Holder, divided by the number of shares of Winter Park 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 Winter Park Bank 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 Winter Park Bank
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 Winter Park 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 Winter Park 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.
SECTION 6. RIGHTS OF THE HOLDER; REMEDIES.
(a) The Holder shall not, by virtue hereof, be entitled to any
rights of a holder of Winter Park Common.
(b) Without limiting the foregoing or any remedies available
to the Holder, Winter Park Bank specifically acknowledges that neither
Huntington nor any successor Holder of this Warrant would have an adequate
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remedy at law for any breach of this Warrant and Winter Park Bank hereby agrees
that Huntington and any successor Holder 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 7. ANTIDILUTION PROVISIONS. The number of shares of
Winter Park 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 Winter Park Bank issues any additional
shares of Winter Park Common at any time after the date hereof (including
pursuant to stock option plans), the number of shares of Winter Park 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. Notwithstanding the
above, so long as the total number of shares of Winter Park Common outstanding
and subject to outstanding options does not exceed 491,259 during the term of
this Warrant, the provisions of this Section 7 will be limited in event Winter
Park Bank issues shares of Winter Park Common pursuant to the exercise of
options outstanding on the date hereof so that the maximum number of shares of
Winter Park Common which can be purchased pursuant to this Warrant will be
108,741.
(b) (i) In the event that, after the date hereof, Winter Park
Bank pays or makes a dividend or other distribution of any class of
capital stock of Winter Park Bank in Winter Park Common, the number of
shares of Winter Park 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 Winter Park 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 Winter Park Common are subdivided into a greater number of
shares of Winter Park Common, the number of shares of Winter Park
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 Winter Park
Common are combined into a smaller number of shares of Winter Park
Common, the number of shares of Winter Park 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 Winter Park Bank is the continuing
corporation) of Winter Park Common into securities including other
than Winter Park Common shall be deemed to involve a subdivision or
combination, as the case may be, of the number of shares of Winter
Park Common outstanding immediately prior to such reclassification
into the number of shares of Winter Park 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) Winter Park Bank may make such increases in the
number of shares of Winter Park 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.
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(c) Whenever the number of shares of Winter Park 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 Winter Park
Common purchasable prior to the adjustment and the denominator of which is equal
to the number of shares of Winter Park Common purchasable after the adjustment.
(d) For the purpose of this Section 7, the term "Winter Park
Common" shall include any shares of Winter Park Bank 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 Winter Park Bank and which is not subject to
redemption by Winter Park Bank.
SECTION 8. NOTICE.
(a) Whenever the number of shares of Winter Park Common for
which this Warrant is exercisable is adjusted as provided in Section 7 hereof,
Winter Park Bank shall promptly compute such adjustment and mail to the Holder a
certificate, signed by a principal financial officer of Winter Park Bank,
setting forth the number of shares of Winter Park 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, Winter Park Bank 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 Winter Park Bank, 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, Winter Park Bank 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 pursuant to the terms thereof, unless such termination is the result
of any material breach of the Merger Documents by Winter Park which would permit
Huntington to terminate the Merger Document.
IN WITNESS WHEREOF, the undersigned has executed this Warrant as of
this 22nd day of May, 1997.
ATTEST: THE BANK OF WINTER PARK
By: /s/ John W. Martin By: /s/ Robert S. Harrell
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Robert S. Harrell, Chairman
Title: Senior Vice President,
Chief Financial Officer
and Secretary
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