EXHIBIT 10 (g)
CLASS D PREFERRED SECURITIES
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SUBSCRIPTION AGREEMENT
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THIS SUBSCRIPTION AGREEMENT (this "Agreement") is entered into as of
October 15, 2001, among HUNTINGTON PREFERRED CAPITAL, INC., an Ohio corporation
(the "Issuer"), HUNTINGTON PREFERRED CAPITAL HOLDINGS, INC., an Indiana
corporation ("HOLDINGS") and THE HUNTINGTON NATIONAL BANK ("HNB").
RECITALS
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A. Holdings desires to purchase from the Issuer, and the Issuer desires
to sell to Holdings, 14,000,000 of the Issuer's Class D preferred securities,
$25.00 liquidation amount per share (the "Class D preferred securities"), for
the sum of $.350,000,000.00 or its equivalent in tangible and intangible assets.
B. The Class D preferred securities are not at this time registered
with the Securities and Exchange Commission (the "SEC"); and this purchase and
sale of the Class D preferred securities is being made in reliance on the
exemption from registration under Section 4(2) of the Securities Act of 1933, as
amended. The Class D preferred securities may be registered with the SEC at some
future time.
C. The Class D preferred securities will be convertible in certain
circumstances at the direction of the Office of the Comptroller of the Currency
(the "OCC") into a like number of HNB Class D Preferred Shares, $25.00
liquidation amount per share (the "Class D conversion shares"). The Class D
conversion shares into which the Class D preferred securities would be converted
if the circumstances arose may be registered with the OCC under its national
bank securities regulations at some future time.
C. The rights, preferences, and other terms of the Class D conversion
shares are substantially the same as the rights, preferences, and other terms of
the Class D preferred securities, except that the Class D conversion shares
would not be listed on any national securities exchange or national quotation
system, would not have any voting rights, and would not have any right to elect
additional independent directors if dividends are missed. .
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Subscription to Securities. Holdings hereby subscribes to the Class
D preferred securities and agrees to pay therefor the sum of $350,000,000.00 or
its equivalent in tangible or intangible assets.
2. Representations and Warranties of Holdings. Holdings hereby warrants
and represents to and agrees with Issuer and HNB that:
a. Holdings is aware that, in reliance on certain exemptions
therefrom, the Class D preferred securities have not been registered with the
SEC or any state securities authority, and that the Class D conversion shares
have not been registered with the OCC.
b. Holdings is purchasing the Class D preferred securities as
an investment and not with a current view to resale thereof, but Holdings does
intend to sell such securities to investors at some future date.
c. Holdings is aware of the kind of information that would be
available in a registration statement filed under the provisions of the
Securities Act of 1933 or under the National Bank Act, 12 U.S.C. 1 et seq., and
related national banking legislation.
d. Holdings has had access to the same kind of information
about the Issuer and HNB that would be available in such registration statements
and to additional information necessary to verify the accuracy of such
information.
e. Holdings has such knowledge and experience in financial and
business matters that it is able to evaluate the merits and risks of this
investment and to bear the economic risks of this investment.
f. Holdings understands that neither the Class D preferred
securities nor the Class D conversion shares are at present publicly traded,
that no market for them currently exists, and that there can be no assurance
that an active and liquid trading market will develop at any time or continue
for either the Class D preferred securities or the Class D conversion shares.
g. Holdings shall indemnify and save harmless the Issuer and
HNB, their respective officers, directors, promoters, incorporator, employees
and agents from any and all liabilities, claims, demands, suits or other
proceedings arising out of any breach or alleged breach of the foregoing
warranties and representations.
h. The certificates evidencing the Class D preferred
securities, and if converted, the Class D conversion shares, shall bear the
following legend in conspicuous type:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE
SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR QUALIFICATION WITHOUT AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION
OR QUALIFICATION IS NOT REQUIRED.
j. Holdings has received and reviewed copies of the express
terms of the Class D preferred securities and of the Class D conversion shares.
3. Conversion of the Securities. If at any time after the issuance of
the Class D preferred securities, the OCC directs HNB in writing to cause the
Class D preferred securities to be converted into the Class D conversion shares,
because (i) HNB is undercapitalized under the prompt corrective regulations, 12
C.F.R. 6.4(b), (ii) HNB is placed into conservatorship or receivership, or (iii)
the OCC, in its sole discretion, anticipates HNB becoming undercapitalized in
the near term, then
(a) Holdings or any subsequent holder or holders of the Class
D preferred securities shall immediately, in accordance with procedures
set forth in the prospectus pursuant to which the Class D preferred
securities were sold, exchange such securities for Class D conversion
shares, on a one share for one share basis, by delivering any and all
certificates representing any of the Class D preferred securities to
HNB, properly endorsed for transfer,
(b) HNB shall immediately and unconditionally issue the
required Class D conversion shares to Holdings or to any subsequent
holder or holders of the Class D preferred securities, and
(c) any and all accrued but unpaid dividends on the Class D
preferred securities through the date of the conversion shall be deemed
to be accrued and unpaid dividends on the related Class D conversion
shares.
4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as signatories.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
HUNTINGTON PREFERRED CAPITAL, INC.
By: /s/ XXXXXXX X. CHEAP
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Xxxxxxx X. Cheap, Vice President and Secretary
HUNTINGTON PREFERRED CAPITAL
HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, President
THE HUNTINGTON NATIONAL BANK
By: /s/ XXXX X. XXXXXXXXXXX
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Xxxx X. Xxxxxxxxxxx, Senior Vice President
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