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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of
February 4, 2000, between HUNTINGTON BANCSHARES INCORPORATED, a Maryland
corporation ("Huntington"), and EMPIRE BANC CORPORATION, a Michigan corporation
("EMPIRE"). (Huntington and Empire are collectively referred to herein as the
"Constituent Corporations.")
RECITALS:
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.
X. Xxxxxxxxxx is authorized to issue a total of 506,617,808 shares of
capital stock, consisting of (1) 500,000,000 shares of common stock, without par
value ("Huntington Common"), of which 227,992,927 shares were issued and
outstanding on January 31, 2000 (exclusive of treasury shares), and (2)
6,617,808 shares of serial preferred stock, without par value, none of which was
issued and outstanding on the date of this Agreement.
C. Empire is a corporation organized and existing under the Michigan
Business Corporation Act and its principal office in the State of Michigan is
located in Grand Traverse County.
D. Empire is authorized to issue 7,000,000 shares of capital stock,
consisting of (1) 5,000,000 shares of common stock, without par value ("Empire
Common"), of which 3,166,234 shares were issued and outstanding on the date of
this Agreement all of which shares are entitled to vote on the "Merger," as such
term is defined in Article 1 below, with an additional 23,820 shares of Empire
Common, in the aggregate, being subject to outstanding stock options previously
issued (collectively, the "Empire Stock Options" and individually, an "Empire
Stock Option") under the Empire Banc Corporation Stock Option Plan (the "Empire
Stock Option Plan"), and with an additional 19,500 shares of Empire Common, in
the aggregate, subject to issuance pursuant to the Empire National Bank
Directors Deferred Compensation Plan and the Empire National Bank Directors
Deferred Income Plan (collectively the "Director Plans"), and (2) 2,000,000
shares of preferred stock, without par value, none of which was issued and
outstanding the date of this Agreement.
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E. The respective Boards of Directors of Huntington and Empire have
approved the merger of Empire into Huntington upon and subject to the terms and
conditions contained herein.
AGREEMENT:
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
Subject to the terms and conditions of this Agreement, and the terms
and conditions contained in a certain Supplemental Agreement, of even date
herewith, among Huntington and Empire (the "Supplemental Agreement"), which is
incorporated by reference in this Agreement, at the "Effective Time" (as such
term is defined in Article 2), Empire 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 Empire shall cease.
ARTICLE 2
EFFECTIVE TIME
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
(1) 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, (2) 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 (3)
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 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.
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ARTICLE 3
EFFECT OF THE MERGER
3.1 NAME. The name of the Surviving Corporation shall be "Huntington
Bancshares Incorporated."
3.2 ARTICLES OF INCORPORATION. The Charter of Huntington in effect at
the Effective Time shall be the charter 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, (1) the separate
existence of Empire shall cease; (2) 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; (3) the Surviving Corporation
shall be liable for all the debts and obligations of each Constituent
Corporation; and (4) 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 Empire
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 Empire and otherwise to carry out the purposes of this Agreement.
ARTICLE 4
CONVERSION OF SHARES
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 EMPIRE COMMON.
(a) At the Effective Time, the shares of Empire 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 of
Empire Common (collectively,
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the "Empire Shareholders" and, individually, a "Empire Shareholder"), into the
right to receive shares of the Huntington Common, as follows:
(1) Subject to adjustment in accordance with Sections (2)
and (3) below, each outstanding share of Empire Common shall be
converted into the right to receive 2.0355 shares of Huntington Common
(the "Conversion Ratio").
(2) If the sum (the "Actual Outstanding Empire Common") of
(a) the number of shares of Empire Common outstanding at the Effective
Time plus (b) the number of shares of Empire Common that are subject
to outstanding Empire Stock Options as of the Effective Time plus (c)
the number of shares of Empire Common that have been accrued under the
Director Plans as of the Effective Time is greater than the sum (the
"Anticipated Outstanding Empire Common") of (x) 3,190,054 shares plus
(y) the number of shares of Empire Common (not to exceed 19,500
shares) that have been accrued under the Directors Plans as of the
Effective Time, the Conversion Ratio will be automatically adjusted by
multiplying the original Conversion Ratio by the quotient obtained by
dividing the Anticipated Outstanding Empire Common by the Actual
Outstanding Empire Common; provided, however, that, in performing any
such adjustment, the Conversion Ratio will be rounded to the nearest
hundredth of a share of Huntington Common.
(3) 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 for such Huntington
Recapitalization 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 Empire 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 Empire 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.
(4) No fractional shares of Huntington Common shall be
issued. Each holder of Empire Common who would otherwise be entitled
to receive a fractional part of a share of Huntington Common shall
instead be entitled to
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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 Empire Common held by Empire, 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 Empire 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 Amended and Restated 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 Empire Common subject to the Empire Stock
Option into a number of Huntington Common shares in accordance with the
procedure for converting outstanding Empire Common shares into Huntington Common
shares as set forth in Section 4.2(a) above, 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 Empire Common share under the Empire Stock
Option divided by the Conversion Ratio determined in accordance with Section
4.2(a)(1) above; provided, however, that, in the case of any Empire 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 Empire 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 Empire shall terminate.
ARTICLE 5
EXCHANGE OF CERTIFICATES
(a) As promptly as practicable after the Effective Date but not later
than ten business days after the Effective Date, Huntington shall cause The
Huntington National Bank or its nominee (the "Exchange Agent") to prepare and
mail to each holder of record on the Effective Date of any shares of Empire
Common a letter of transmittal containing instructions for the surrender of all
certificates for shares of Empire Common. Upon the surrender by such holder of a
certificate or certificates for shares of Empire 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 a certificate representing the number of whole shares of Huntington
Common into which the shares represented by the
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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 Section 4.2(a)(4). 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 Section 4.2(a)(4) in order to
permit the Exchange Agent to promptly deliver such certificates and cash to the
holders of shares of Empire Common upon its receipt of certificates representing
shares of Empire 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 Empire until such
former shareholder surrenders the certificate or certificates representing
shares of Empire 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 Empire 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 Empire 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
Empire 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 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 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 Empire 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 Empire shall be closed as of
the close of business on the day that is two business days prior to the
Effective Date. After such date,
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there shall be no further registration on the records of Empire of transfers of
outstanding certificates formerly representing shares of Empire 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 Empire
shall constitute ratification of the appointment of the Exchange Agent.
ARTICLE 6
SHAREHOLDER APPROVAL
This Agreement shall be submitted to the shareholders of Empire for
approval in accordance with applicable law and its Governing Documents as soon
as reasonably practicable following the execution of this Agreement.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 AMENDMENT. At any time prior to the Effective Time, the parties
may amend, modify, or supplement this Agreement by mutual agreement authorized
by their respective boards of directors, whether before or after the
shareholders of Empire have adopted this Agreement, provided that the number of
shares of Huntington Common into which shares of Empire Common are to be
converted as determined in Section 4.2(a) shall not be changed after the
shareholders of Empire 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.
7.2 TERMINATION. Unless extended by the mutual agreement of the
parties, this Agreement may be terminated, notwithstanding the adoption thereof
by the shareholders of Huntington or Empire in the manner and under the
circumstances set forth in the Supplemental Agreement.
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.
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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 under this Agreement shall be assigned or transferred by operation
of law or otherwise by any party without the prior written consent of the other
party.
7.6 BENEFIT. Nothing in this Agreement, express or implied, is
intended to confer upon any person or entity other than the parties 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 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 Empire.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
HUNTINGTON BANCSHARES INCORPORATED
By: /s/ Xxxxxxx X. Cheap
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Xxxxxxx X. Cheap,
General Counsel and Secretary
EMPIRE BANC CORPORATION
By: /s/ Xxxxx X. Xxxxxxx, Xx.
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Xxxxx X. Xxxxxxx, Xx.,
Chairman and Chief Executive Officer
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