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EXHIBIT 4
AMENDMENT TO RIGHTS AGREEMENT
This AMENDMENT (the "Amendment"), dated as of February 5, 2000, to the
Rights Agreement, dated as of December 19, 1990 (the "Rights Agreement"),
between Empire Banc Corporation, a Michigan corporation (the "Company"), and
Empire National Bank, as Rights Agent (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
WHEREAS, Huntington Bancshares Incorporated, a Maryland corporation
("Acquiror"), and the Company contemplate entering into an Agreement and Plan of
Merger including a certain Supplemental Agreement of even date (collectively,
the "Merger Agreement") pursuant to which, among other things, the Company will
merge with and into Acquiror (the "Merger"). The Board of Directors of the
Company has approved the Merger Agreement.
WHEREAS, in connection with the Merger Agreement, Acquiror and the Company
contemplate entering into a warrant purchase agreement (the "Warrant Purchase
Agreement") pursuant to which the Company will grant to Acquiror an option to
purchase shares of the Company's common stock, no par value, on the terms and
subject to the conditions set forth in the Warrant Purchase Agreement. The Board
of Directors of the Company has approved the Warrant Purchase Agreement.
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement and amend the Rights
Agreement.
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Company and the Rights Agent desire to
evidence such amendment in writing.
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
Accordingly, the parties agree as follows:
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A. Amendment of Section 1. Section of the Rights Agreement is supplemented
to add the following definitions as Sections 1.14 through 1.16:
1.14 "Merger" shall mean the "Merger" as defined in the Merger
Agreement.
1.15 "Merger Agreement" shall mean the Agreement and Plan of Merger
(including that certain Supplemental Agreement), dated as of February 5, 2000,
by and between Huntington Bancshares Incorporated and Empire Banc Corporation,
as it may be amended from time to time."
1.16 "Warrant Purchase Agreement" shall have the meaning set forth in the
Merger Agreement and shall include the Warrant issued pursuant to the Warrant
Purchase Agreement.
B. Amendment of the definition of "Acquiring Person". The definition of
"Acquiring Person" in Section 1.1 of the Rights Agreement is amended by adding
the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, Huntington
Bancshares Incorporated shall not be deemed to be an Acquiring Person
solely by virtue of (i) the execution of the Merger Agreement or the
Warrant Purchase Agreement, (ii) the consummation of the Merger or (iii)
the consummation of the other transactions contemplated in the Merger
Agreement or the Warrant Purchase Agreement."
C. Amendment of the definition of "Distribution Date". Section 3.1 of the
Rights Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred solely as the result of (i) the
execution of the Merger Agreement or the Warrant Purchase Agreement, (ii)
the consummation of the Merger, or (iii) the consummation of the other
transactions contemplated in the Merger Agreement and the Warrant Purchase
Agreement."
D. Amendment of Section 29. Section 29 of the Rights Agreement is amended
to add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of Rights
or any other Person any legal or equitable rights, remedies or claims under
this Agreement by virtue of the execution of the Merger Agreement or the
Warrant Purchase Agreement or by virtue of any of the transactions
contemplated by the Merger Agreement or the Warrant Purchase Agreement."
E. Effectiveness. This Amendment shall be deemed effective as of the date
first written above, as if executed on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
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F. Miscellaneous. This Amendment shall be deemed to be a contract made
under the laws of the State of Michigan and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such state. This Amendment
may be executed in any number of counterparts, each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. If any provision, covenant
or restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be effected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
ATTEST: EMPIRE BANC CORPORATION
/s/ Xxxxxxx X. Xxxxxxxxxx /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------ -----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxxxxx, Xx.
Title: Vice President and Chairman and Chief Executive
Secretary/Treasurer Officer
ATTEST: EMPIRE NATIONAL BANK
/s/ Xxxxxxx X. Xxxxxxxxxx, Xx. /s/Xxxxxx X. Israel
----------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx. Name: Xxxxxx X. Israel
Title: Division Vice President Title: President and Chief
And Chief Financial Officer Operating Office
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