EXHIBIT 1.1
EXECUTION COPY
HUNTINGTON BANCSHARES INCORPORATED
8.50% Series A Non-Cumulative Perpetual Convertible Preferred Stock
Underwriting Agreement
April 16, 2008
Morgan Stanley & Co. Incorporated
Lehman Brothers Inc.
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Huntington Bancshares Incorporated, a Maryland corporation (the
Company
), proposes, subject
to the terms and conditions stated herein, to issue and sell to you, as the representatives of the
several underwriters (the
Underwriters
), 500,000 shares of 8.50% Series A Non-Cumulative
Perpetual Convertible Preferred Stock that are specified in Schedule I (the
Firm Securities
),
convertible into shares of common stock, par value $0.01 per share (the
Stock
), of the Company
and, at the election of the Underwriters, up to an aggregate of 75,000 additional shares of 8.50%
Series A Non-Cumulative Perpetual Convertible Preferred Stock (the
Optional Securities
) (the Firm
Securities and the Optional Securities that the Underwriters elect to purchase pursuant to Section
2 being collectively called the
Securities
) to the extent the Underwriters sell more than the
number of Firm Securities in the offering.
Capitalized terms used herein and not otherwise defined but that are defined in the Pricing
Prospectus (as defined in Section 1(a)), have the meanings specified in the Pricing Prospectus.
1.
Representations and Warranties
. The Company represents and warrants to, and agrees
with, the Underwriters as follows:
(a) An automatic shelf registration statement as defined under Rule 405 under the Securities
Act of 1933, as amended (the
Act
), on Form S-3 (File Nos. 333-131143, 333-131143-01,
333-131143-02, 333-131143-03 and 333-131143-04) in respect of the Securities and shares of Stock
issuable upon conversion thereof has been filed with the Securities and Exchange Commission (the
Commission
) not earlier than three years prior to the date hereof; pursuant to the Act, such
registration statement, and any post-effective amendment thereto, became effective on filing; and
no stop order suspending the effectiveness of such registration statement or any part thereof has
been issued and no proceeding for that purpose has been initiated or threatened by the Commission,
and no notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the
Company (the base prospectus filed as part of such registration statement, in the form in which it
has most recently been filed with the Commission on or prior to the date of this Agreement, is
hereinafter called the
Basic Prospectus
; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act is hereinafter called a
Preliminary Prospectus
; the various parts of such
registration statement, including all exhibits thereto, and including any prospectus supplement
relating to the Securities that is filed with the Commission and deemed by
Convertible Preferred Stock Underwriting Agreement
virtue of Rule 430B to be part of such registration statement, each as amended at the time
such part of the registration statement became effective, are hereinafter collectively called the
Registration Statement
; the Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(c)), is hereinafter called the
Pricing Prospectus
;
the form of the final prospectus relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(A)(a) is hereinafter called the
Prospectus
; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus;
any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities
Exchange Act of 1934, as amended (the
Exchange Act
), and incorporated therein, in each case after
the date of the Basic Prospectus, such Preliminary Prospectus or the Prospectus, as the case may
be; any reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated by reference in the
Registration Statement; and any issuer free writing prospectus as defined in Rule 433 under the
Act relating to the Securities is hereinafter called an
Issuer Free Writing Prospectus
);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act, and the rules
and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein, which information
is limited to the information set forth in Section 8(f);
(c) For the purposes of this Agreement, the
Applicable Time
is 5:00 PM (Eastern time) on the
date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and
filed pursuant to Section 5(A)(a), taken together (collectively, the
Pricing Disclosure Package
)
as of the Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus
listed on Schedule II does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus,
as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable
Time, did not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein, which information is limited to the information set
forth in Section 8(f);
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
Convertible Preferred Stock Underwriting Agreement
2
material respects to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the Representatives
expressly for use therein, which information is limited to the information set forth in Section
8(f); and no such documents were filed with the Commission since the Commissions close of business
on the business day immediately prior to the date of this Agreement and prior to the execution of
this Agreement, except as set forth on Schedule II(b);
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein, which information is limited to the
information set forth in Section 8(f);
(f) Neither the Company nor any of its Significant Subsidiaries (as defined below) has
sustained since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or contemplated in
the Pricing Prospectus; and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not been any material adverse change
in the capital stock or long-term debt of the Company or any of its Significant Subsidiaries or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders equity or results of
operations of the Company and its subsidiaries, considered as a whole, otherwise than as set forth
or contemplated in the Pricing Prospectus;
(g) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure to so qualify or be in good
standing would not, individually or in the aggregate, have a material adverse effect on the current
or future financial position, stockholders equity or results of operations of the Company and its
subsidiaries, considered as a whole (a
Material Adverse Effect
). Each significant subsidiary (as
defined in Rule 405 under the Act) of the Company as set forth on Schedule IV (each, a
Significant
Subsidiary
) has been duly constituted and is validly
Convertible Preferred Stock Underwriting Agreement
3
existing as a corporation, limited liability company, national banking association or business
trust, as applicable, in good standing under the laws of its jurisdiction of incorporation or
formation;
(h) The Company is duly registered as a bank holding company and qualified as a financial
holding company under the Bank Holding Company Act of 1956, as amended (the
BHC Act
);
(i) The Company and each of its subsidiaries are in compliance with all laws administered by
the Board of Governors of the Federal Reserve System (the
Federal Reserve Board
), the Office of
the Comptroller of the Currency (the
OCC
), the Federal Deposit Insurance Corporation (
FDIC
) and
any other federal or state bank regulatory authorities (together with the Federal Reserve Board,
the OCC and the FDIC, the
Bank Regulatory Authorities
) with jurisdiction over the Company or any
of its subsidiaries, except for failures to be so in compliance that would not individually or in
the aggregate have a Material Adverse Effect;
(j) The Company has an authorized capitalization as set forth in the Pricing Prospectus and
all of the issued shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares of capital stock of each
Significant Subsidiary that is a corporation or association have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for directors qualifying shares or as
listed in Schedule IV) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; and the shares of Stock initially issuable upon conversion
of the Securities have been duly and validly authorized and reserved for issuance and, when issued
and delivered in accordance with the provisions of the Securities, will be duly and validly issued,
fully paid and non-assessable and will conform in all material respects to the description of the
Stock contained in the Pricing Disclosure Package and the Prospectus; and none of the outstanding
shares of capital stock of the Company was issued in violation of the preemptive or other similar
rights of any security holder of the Company.
(k) The Securities have been duly and validly authorized and, when issued and delivered
against payment at each Time of Delivery as contemplated by the Pricing Prospectus, such Securities
will be validly issued and will constitute valid and legally binding obligations of the Company;
and the Securities conform in all material respects to the descriptions thereof in the Pricing
Disclosure Package and the Prospectus;
(l) This Agreement has been duly authorized, executed and delivered by the Company;
(m) The issuance and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities and this Agreement and the consummation of the transactions herein and
therein contemplated by the Company will not (i) whether with or without the giving of notice or
lapse of or both, conflict with or constitute a breach or violation of, or default or Repayment
Event under or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary pursuant to any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument to which the Company or any Significant Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company or any Significant
Subsidiary is subject, or (ii) result in any violation of the provisions of (A) the Charter or the
Bylaws of the Company or other organizational documents of any Significant Subsidiary, or (B) any
applicable law, statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court having jurisdiction over the Company or any Significant
Subsidiary or any of their properties, assets or operations, except (in the case of (i) or (ii)(B))
for conflicts, breaches, violations or defaults which would not have a Material Adverse Effect;
Convertible Preferred Stock Underwriting Agreement
4
and no filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency, domestic or foreign
(other than under the Act, which have been obtained, or as may be required under the securities or
Blue Sky laws of the various states or securities regulations of foreign jurisdictions) is
necessary or required in connection with the issuance and sale of the Securities by the Company or
the consummation by the Company of the transactions contemplated by this Agreement, except such as
have been obtained under the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws or securities regulations
of foreign jurisdictions in connection with the purchase and distribution of the Securities by the
Underwriters. As used herein, a
Repayment Event
means any event or condition that gives the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such
holders behalf) the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any Significant Subsidiary.
(n) Neither the Company nor any of its Significant Subsidiaries is (A) in violation of its
Charter, or comparable organizational documents, (B) in violation of its Bylaws or (C) in default
in the performance or observance of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound, except where such defaults
under (B) or (C) would not individually or in the aggregate have a Material Adverse Effect;
(o) The statements set forth in the Pricing Prospectus and the Prospectus under the captions
Description of the Preferred Stock and Description of Huntington Capital Stock Preferred
Stock, insofar as they purport to constitute a summary of the terms of the Securities and to
describe the provisions of the documents referred to therein, fairly summarize in all material
respects the matters therein described; the statements set forth in the Pricing Prospectus and the
Prospectus under the caption Certain U.S. Federal Income Tax Considerations and Certain ERISA
Considerations, insofar as they purport to constitute a summary of matters of U.S. federal income
tax law or the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or
legal conclusions with respect thereto, constitute an accurate summary in all material respects of
the matters set forth therein;
(p) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant Subsidiaries is a party or of
which any property of the Company or any of its Significant Subsidiaries is the subject that,
individually or in the aggregate, would be reasonably expected to have a Material Adverse Effect;
and, to the Companys knowledge, no such proceedings are threatened;
(q) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an investment company, as such term is
defined in the Investment Company Act;
(r) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made
any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the
Company was a well-known seasoned issuer as defined in Rule 405 under the Act; and (B) at the
earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within
Convertible Preferred Stock Underwriting Agreement
5
the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company was not an
ineligible issuer as defined in Rule 405 under the Act;
(s) Deloitte & Touche LLP, who have audited certain financial statements of the Company and
its subsidiaries and have audited the effectiveness of the Companys internal control over
financial reporting, are independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(t) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Companys principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles; the Companys internal
control over financial reporting was effective as of December 31, 2007 and the Company is not aware
of any material weaknesses in its internal control over financial reporting;
(u) Since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, there has been no change in the Companys internal control
over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Companys internal control over financial reporting;
(v) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Companys principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures were effective as of December 31, 2007;
(w) The operations of the Company and its subsidiaries have been conducted at all times in
compliance with applicable financial record keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any applicable governmental agency
(collectively, the
Money Laundering Laws
), except where the failure to so comply would not,
individually or in the aggregate, have a Material Adverse Effect, and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened that would, individually or in the aggregate, have a Material
Adverse Effect; and
(x) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee of the Company (in their capacities as such) or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (
OFAC
); and the Company
will not use the proceeds of the offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
Convertible Preferred Stock Underwriting Agreement
6
2.
Purchase and Sale
.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, (i) the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree, severally but not jointly, to purchase from the Company the number of Firm
Securities set forth in Schedule I at the purchase price set forth in Schedule I, and (ii) in the
event and to the extent that the Underwriters shall exercise the election to purchase Optional
Securities as provided below, the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree, severally but not jointly, to purchase from the Company, at the same purchase
price set forth in clause (i) of this Section 2(a), the number of Optional Securities as to which
such election shall have been exercised (to be adjusted by you so as to eliminate fractions).
(b) The Company hereby grants to the Underwriters the right to purchase at their election,
from time to time and in whole or in part, up to 75,000 Optional Securities, at the same purchase
price set forth in clause (i) of Section 2(a). Any such election to purchase Optional Securities
may be exercised only by written notice from you to the Company setting forth the number of
Optional Securities to be purchased and the date on which such Optional Securities are to be
delivered, as determined by you but in no event (i) earlier than the First Time of Delivery, (ii)
later than 30 calendar days after the First Time of Delivery or (iii) unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days after the date of such
notice.
3.
Delivery and Payment
. (a) Delivery of and payment for the Securities shall be made at
the office, on the date and at the time specified (i) with respect to the Firm Securities, in
Schedule I or at such other date and time as the Underwriters and the Company may agree in writing
(such time and date of delivery of and payment for the Firm Securities being herein called the
First Time of Delivery
) and (ii) with respect to the Optional Securities, if any, by the
Underwriters in their written notice of election to purchase such Optional Securities, or at such
other date and time as the Underwriters and the Company may agree in writing (such time and date
and time of delivery of and payment for the Optional Securities being herein called the
Second
Time of Delivery
; each First Time of Delivery and Second Time of Delivery is herein called a
Time
of Delivery
). The Securities to be purchased by the Underwriters hereunder will be represented by
one or more global certificates representing the Securities that will be deposited by or on behalf
of the Company with The Depository Trust Company (
DTC
) or its designated custodian. The Company
shall deliver the Securities to Lehman Brothers Inc., for the account of each Underwriter against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the Underwriters at least
forty-eight hours in advance, by causing DTC to credit the Securities to the account of the
Underwriters at DTC. The Company shall cause the certificates representing the Securities to be
made available to the Underwriters for checking at least twenty-four hours prior to each Time of
Delivery at the office of DTC or its designated custodian (the Designated Office).
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7, including the cross-receipt for Securities and any additional
documents requested by the Underwriters pursuant to Section 7(n) hereof, will be delivered to the
Closing Location specified in Schedule I, and the Securities will be delivered at the Designated
Office, all at each Time of Delivery. A meeting will be held at the Closing Location at 5:00 P.M.,
Eastern time, on the New York Business Day next preceding each Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 3,
New York Business
Day
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or obligated by law or executive
order to close.
Convertible Preferred Stock Underwriting Agreement
7
4.
Offering by Underwriters
. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Pricing Disclosure Package and the Prospectus.
5.
Agreements
. (A)
General
. The Company agrees with the Underwriters as follows:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commissions close of business on the second
business day following the date of this Agreement; to make no further amendment or any supplement
to the Registration Statement, the Basic Prospectus or the Prospectus prior to any Time of Delivery
that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to prepare a final term sheet, containing solely a description
of the Securities, in a form set forth in Schedule III and to file such term sheet pursuant to Rule
433(d) under the Act within the time required by such Rule; to file promptly all other material
required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to
file promptly all reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with
the offering or sale of the Securities; to advise you, promptly after the Company receives notice
thereof, of the time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities,
of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities
or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration Statement or filing a new
registration statement, at the Companys own expense, as may be necessary to permit offers and
sales of the Securities by the Underwriters (references herein to the Registration Statement shall
include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus that shall be disapproved by you promptly after reasonable notice
thereof;
(c) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction or to
become subject to taxation in any jurisdiction in which it is not otherwise subject;
Convertible Preferred Stock Underwriting Agreement
8
(d) The Company will use its reasonable best efforts to furnish to the Underwriters prior to
noon, Eastern time, on the New York business day next succeeding the date of this Agreement and
from time to time, with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required at any time after the time of
issue of the Prospectus in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to you and to any dealer in securities as many written and electronic
copies as you may from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus that will correct such statement or omission or effect such compliance;
(e) To make generally available to its security holders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) of the
Company and its subsidiaries complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date of the Prospectus, and continuing to and
including the date 90 days after the date hereof or such earlier time as you may notify the
Company, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short
sale or otherwise dispose of, except as provided hereunder, any Securities or any shares of Stock
or any security of the Company that is substantially similar to the Securities or the Stock, any
options or warrants to purchase any Securities or any shares of Stock, or any securities that are
convertible into or exchangeable for or that represent the right to receive Securities or any
shares of Stock or any security of the Company that is substantially similar to the Securities or
the Stock or file a registration statement with respect to any of the foregoing other than (1) the
offer and sale of Securities pursuant to this Agreement, (2) the grant of stock options, restricted
stock units or other equity awards pursuant to the Companys existing employee benefit, employee
stock purchase or dividend reinvestment plans, (3) the issuance of Stock pursuant to the exercise
of options or the settlement of equity awards, or (4) upon the consent of the Representatives. For
the avoidance of doubt, the foregoing restrictions in this Section 5(f) shall not apply to (1) any
of the family of funds known as Huntington Funds or (2) The Huntington National Bank acting in its
various fiduciary capacities, including, without limitation, sales of Company Stock by the
Companys 401K and personal trusts.
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act;
(h) To reserve and keep available at all times, free of preemptive rights, shares of Stock for
the purpose of enabling the Company to satisfy any obligation to issue shares of Stock upon
conversion of the Securities; and
Convertible Preferred Stock Underwriting Agreement
9
(i) To use the net proceeds received from the sale of the Securities in the manner specified
in the Pricing Prospectus under the caption Use of Proceeds.
(B) Free Writing Prospectuses.
(a) (i) The Company represents and agrees that, other than the final term sheet prepared and
filed pursuant to Section 5(A)(a), without the prior consent of the Representatives, it has not
made and will not make any offer relating to the Securities that would constitute a free writing
prospectus as defined in Rule 405 under the Act;
(ii) Each Underwriter represents and agrees that, without the prior written consent of
the Company and the Representatives, other than one or more term sheets relating to the
Securities containing customary information (which, in their final form, will not be
inconsistent with the final term sheet prepared and filed pursuant to Section 5(a) hereof)
and conveyed to purchasers of Securities, it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus; and
(iii) Any such free writing prospectus the use of which has been consented to by the
Company and the Representatives (including the final term sheet prepared and filed pursuant
to Section 5(A)(a)) is listed on Schedule II(a) or Schedule II(b);
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this agreement shall not apply to any statements or omissions in
an Issuer Free Writing Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representatives expressly for use
therein, which information is limited to the information set forth in Section 8(f).
6.
Expenses
. The Company covenants and agrees with the Underwriters that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys
counsel and accountants in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this
Agreement, the Blue Sky memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(A)(c), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such qualification
Convertible Preferred Stock Underwriting Agreement
10
and in connection with the Blue Sky survey (provided, however, that the aggregate fees and
disbursements of counsel in connection with this clause (iii) shall not exceed $30,000 without
prior written consent of the Company, which consent will not be unreasonably withheld); (iv) any
fees charged by securities rating services for rating the Securities; (v) the cost of preparing the
certificates for the Securities and shares of Stock issuable upon conversion of the Securities in
definitive form; (vi) filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required review by The Financial Industry Regulatory
Authority, Inc. (
FINRA
) of the terms of the sale of the Securities; (vii) all fees and expenses
in connection with the listing of the Securities; (viii) the costs and charges of any transfer
agent or registrar or paying agent; (ix) all of the Companys costs and expenses relating to
investor roadshow and similar presentations; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section, and Sections 8 and 9,
the Underwriters will pay all of its own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by it, and any advertising expenses connected
with any offers it may make.
7.
Conditions to the Obligations of the Underwriters
. The obligations of the Underwriters,
as to Securities to be purchased at each Time of Delivery, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of the date hereof as
of the Applicable Time and at and as of such Time of Delivery, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(A)(a); the final term sheet contemplated by Section
5(A)(a), and any other material required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the applicable time periods prescribed
for such filings by Rule 433; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission and no notice of objection of the Commission to the
use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to
you, with respect to such matters as the Underwriters may reasonably require, and such counsel
shall have received such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) The Companys Senior Corporate Counsel or such other internal counsel as shall be
reasonably acceptable to the Underwriters (the
Internal Counsel
), shall have furnished to you
such counsels written opinion, to the effect set forth in Annex II(a), dated such Time of
Delivery, in form and substance satisfactory to you;
Convertible Preferred Stock Underwriting Agreement
11
(d) Venable LLP, Maryland counsel for the Company, shall have furnished to you their written
opinion, to the effect set forth in Annex II(b), dated such Time of Delivery, in form and substance
satisfactory to you;
(e) Wachtell, Lipton, Rosen & Katz, outside counsel for the Company, shall have furnished to
you their written opinion, to the effect set forth in Annex II(c), dated such Time of Delivery, in
form and substance satisfactory to you;
(f) Shearman & Sterling LLP, special tax counsel to the Company, shall have furnished to you
their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to
the effect that (i) subject to the qualifications set forth in the opinion and the Pricing
Disclosure Package and the Prospectus, the statements made in the Pricing Disclosure Package and
Prospectus under the caption Certain United States Federal Income Tax Considerations insofar as
they purport to constitute summaries of matters of United States federal income tax law and
regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects and (ii) subject to the qualifications set forth in the
opinion and the Pricing Disclosure Package and the Prospectus, the statements made in the Pricing
Disclosure Package and Prospectus under the caption Certain ERISA Considerations, insofar as they
purport to constitute summaries of matters of the U.S. Employee Retirement Income Security Act of
1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of
the matters described therein in all material respects;
(g) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
A.M., Eastern time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery,
Deloitte & Touche LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I
hereto, (the executed copy of the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) and a form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement, and as of such Time of Delivery is attached
as Annex I(b));
(h) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and
(ii) since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus;
(i) The Company shall have complied with its obligations pursuant to the first sentence of
Section 5(A)(d) with respect to the furnishing of prospectuses on the business day next succeeding
the date of this Agreement;
Convertible Preferred Stock Underwriting Agreement
12
(j) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Companys debt securities or preferred stock by any nationally recognized statistical
rating organization, as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no
such organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Companys debt securities or preferred
stock;
(k) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or on NASDAQ; (ii) a suspension or material limitation in trading in the Companys securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or
New York or Ohio State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus; and
(l) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (h) of this Section 7 and as to such other matters as
you may reasonably request.
8.
Indemnification and Contribution
.
(a) The Company will indemnify and hold harmless the Underwriters against any losses, claims,
damages or liabilities, joint or several, to which the Underwriters may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus, any road show (as defined in Rule 433) not constituting an Issuer
Free Writing Prospectus or any issuer information filed or required to be filed pursuant to Rule
433(d) under the Act, 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
not misleading, and will reimburse the Underwriters for any legal or other expenses reasonably
incurred by the Underwriters in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company by an Underwriter
through the Representatives expressly for use therein, which information is limited to the
information set forth in Section 8(f).
(b) The Underwriters will, severally and not jointly, indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may become subject,
Convertible Preferred Stock Underwriting Agreement
13
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Issuer Free Writing Prospectus, 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 not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with written information furnished to the Company by an
Underwriter through the Representatives expressly for use therein, which information is limited to
the information set forth in Section 8(f); and will reimburse the Company, as appropriate, for any
legal or other expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability that it may have to any indemnified party other than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation,
provided, however
, that the
Representatives shall have the right to employ counsel to represent jointly the Representatives and
those other Underwriters and their respective directors, officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of which indemnity may
be sought by the Underwriters against the Company under this Section 8 if the named parties in any
such proceeding (including any impleaded parties) include both the Underwriters or their respective
directors, officers, employees or controlling persons, on the one hand, and the Company, on the
other hand, and representation of both sets of parties by the same counsel would be inappropriate
due to actual or potential differing interests between them, and in any such event the fees and
expenses of such separate counsel shall be paid by the Company. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall
Convertible Preferred Stock Underwriting Agreement
14
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company on the one hand or the Underwriters on the other and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company on the one hand and the Underwriters on the other agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages that the Underwriters have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability
that the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of the Act; and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 8 shall be
in addition to any liability which the Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
(f) The Underwriters severally confirm that the statements regarding delivery of shares by the
Underwriters set forth on the cover page of, and the commission figures and the paragraphs relating
to stabilization by the Underwriters and electronic distribution appearing under the caption
Underwriting in, the most recent Preliminary Prospectus and the Prospectus are correct and the
Company acknowledges and agrees that such information constitutes the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto.
Convertible Preferred Stock Underwriting Agreement
15
9.
Underwriter Default
.
(a) If any Underwriter shall default in its obligation to purchase the Securities which it has
agreed to purchase hereunder, without relieving any defaulting Underwriter from liability for its
default, you may in your discretion arrange for you or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Securities on such terms. In the event that, within
the respective prescribed periods, you notify the Company that you have so arranged for the
purchase of such Securities, or the Company notifies you that it has so arranged for the purchase
of such Securities, you or the Company shall have the right to postpone any Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The
term Underwriter as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate liquidation amount of such Securities which remains unpurchased does not exceed one
eleventh of the aggregate liquidation amount of all the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the liquidation amount of Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the liquidation amount of the
Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate liquidation amount of Securities which remains unpurchased exceeds one eleventh of
the aggregate liquidation amount of all the Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters to purchase the
Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the Company and
without any liability on the part of the Company to any Underwriter, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10.
Expenses on Termination
. If for any reason the Securities are not delivered by or on
behalf of the Company as provided herein for any reason other than the termination of this
Agreement pursuant to Section 9(c) or the default by one or more of the Underwriters in its or
their respective obligations, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses, including reasonable fees and disbursements of counsel, reasonably incurred
by the Underwriters in making preparations for the purchase, sale and delivery of the Securities
but the Company shall then be under no further liability to the Underwriters except as provided in
Section 6 and Section 8.
Convertible Preferred Stock Underwriting Agreement
16
11.
Time is of the Essence
. Time shall be of the essence of this Agreement. As used
herein, the term business day shall mean any day when the Commissions office in Washington, D.C.
is open for business.
12.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by an Underwriter through the Representatives, the
Company or any of the controlling persons referred to in Section 8(e), and will survive delivery of
and payment for the Securities. The provisions of Sections 6 and 8 shall survive the termination
or cancellation of this Agreement.
13.
Termination
.
The obligations of the Underwriters hereunder may be terminated by the
Representatives by written notice given to and received by the Company prior to delivery of and
payment for the Firm Securities if, prior to that time, any of the events described in Sections
7(h), 7(j) and 7(k) shall have occurred.
14.
Research Analyst Independence
.
The Company acknowledges that the Underwriters
research analysts and research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and internal policies, and that
such Underwriters research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company and/or the offering
that differ from the views of their respective investment banking divisions. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any conflict of interest that may arise from the fact that
the views expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advice communicated to the Company by such
Underwriters investment banking divisions. The Company acknowledges that each of the Underwriters
is a full service securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its customers and hold long or
short positions in debt or equity securities or loans (or any derivative thereof) of the companies
that may be the subject of the transactions contemplated by this Agreement.
15.
Arms-Length Terms
. The Company acknowledges and agrees that (i) the purchase and sale
of the Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction the Underwriters are acting solely as a principal and not
the agent or fiduciary of the Company, (iii) the Underwriters have not assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether the Underwriters have advised or are
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
16.
No Other Agreements
. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters with respect to the subject
matter hereof.
Convertible Preferred Stock Underwriting Agreement
17
17.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, heirs, executors, and administrators, and the
officers and directors and controlling persons referred to in Section 8(e), and no other person
will have any right or obligation hereunder.
18.
Applicable Law
. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
19.
Waiver of Jury Trial
. The Company and the Underwriters hereby irrevocably waive, to
the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20.
Counterparts; Notices
. This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, which taken together shall constitute one and the same
instrument.
All notices hereunder shall be in writing or by telegram if promptly confirmed in writing, and
if to the Underwriters shall be sufficient in all respects if delivered or sent by mail, telex or
facsimile transmission to the addresses of Morgan Stanley & Co. Incorporated and Lehman Brothers
Inc. as set forth in Schedule I; and if to the Company shall be sufficient in all respects if
delivered or sent by mail, telex or facsimile transmission to its address set forth in the
Registration Statement, Attention: General Counsel and Secretary.
The Underwriters hereby notify the Company that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
Patriot Act
)
the Underwriters may be required to obtain, verify and record information that identifies the
Company, which information includes the name and address of the Company and other information that
will allow the Underwriters to identify the Company in accordance with the Patriot Act. This
notice is given in accordance with the requirements of the Patriot Act and is effective for each
Underwriter.
21.
Disclosure of Tax Treatment
. Notwithstanding anything herein to the contrary, the
Company is authorized to disclose to any persons the U.S. federal and state income tax treatment
and tax structure of the potential transaction and all materials of any kind (including tax
opinions and other tax analyses) provided to the Company relating to that treatment and structure,
without the Underwriters, imposing any limitation of any kind. However, any information relating to
the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities laws. For this
purpose, tax structure is limited to any facts that may be relevant to that treatment.
[
THE NEXT PAGE IS THE SIGNATURE PAGE
]
Convertible Preferred Stock Underwriting Agreement
18
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us four counterparts hereof, whereupon this letter and your acceptance shall represent a
binding agreement between the Company and the Underwriters.
|
|
|
|
|
|
Very truly yours,
HUNTINGTON BANCSHARES INCORPORATED
|
|
|
By:
|
/s/ Beth A. Russell
|
|
|
|
Name:
|
Beth A. Russell
|
|
|
|
Title:
|
Senior Vice President
|
|
|
|
|
|
|
|
Accepted as of the date hereof:
|
|
|
|
|
|
|
|
Morgan Stanley & Co. Incorporated
|
|
|
|
|
|
|
|
By:
|
|
/s/ Serkan Savasoglu
Name: Serkan Savasoglu
Title: Executive Director
|
|
|
|
|
|
|
|
Lehman Brothers Inc.
|
|
|
|
|
|
|
|
By:
|
|
/s/ Victoria Hale
Name: Victoria Hale
Title: Vice President
|
|
|
Convertible Preferred Stock Underwriting Agreement
SCHEDULE I
Title of Securities:
8.50% Non-Cumulative Perpetual Convertible Preferred Stock, Series
A, $1,000 liquidation preference per share of Huntington Bancshares
Incorporated (the
Convertible Preferred Stock
)
Number of Firm Securities:
500,000
Number of Optional Securities:
75,000
Initial Public Offering Price:
$1,000 per share of Convertible Preferred Stock
Purchase Price by Underwriters:
$970 per share of Convertible Preferred Stock
Underwriters Compensation:
$30 per share of Convertible Preferred Stock
Specified Funds for Payment of Purchase Price:
Immediately available funds by wire
First Time of Delivery:
April 22, 2008; 10 A.M. (Eastern time)
Closing Location:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Address for Notices, etc.:
For Morgan Stanley:
Morgan Stanley & Co. Incorporated
1585 Broadway
Convertible Preferred Stock Underwriting Agreement
I-1
New York, NY 10036
Attn:
Telex:
Facsimile:
For Lehman Brothers:
Underwriter Contact Information:
Lehman Brothers Inc.
1271 Avenue of the Americas, 42
nd
Floor
New York, NY 10020
Attn: Syndicate Registration
Fax: 646-834-8133
Indemnification Contact:
Director of Litigation, Office of the General Counsel
Lehman Brothers Inc.
1271 Avenue of the Americas, 44
th
Floor
New York, NY 10020
Fax: 212-520-0421
Underwriters:
|
|
|
|
|
|
|
Number of
|
Underwriter
|
|
Shares
|
Morgan Stanley & Co. Incorporated
|
|
|
257,500
|
|
Lehman Brothers Inc.
|
|
|
207,500
|
|
Wachovia Capital Markets, LLC
|
|
|
16,650
|
|
The Huntington Investment Company
|
|
|
10,000
|
|
SunTrust Robinson Humphrey, Inc.
|
|
|
8,350
|
|
Total
|
|
|
500,000
|
|
|
|
|
|
|
Convertible Preferred Stock Underwriting Agreement
I-2
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
(b) Issuer Free Writing Prospectuses included in the Pricing Disclosure Package:
(c) Additional Documents Incorporated by Reference:
Convertible Preferred Stock Underwriting Agreement
II-1
EXHIBIT 3.2
ARTICLES
SUPPLEMENTARY
DESIGNATING
THE RIGHTS AND PREFERENCES
OF
THE 8.50% SERIES A NON-CUMULATIVE PERPETUAL CONVERTIBLE PREFERRED
STOCK,
PAR VALUE $0.01 PER SHARE
OF
HUNTINGTON
BANCSHARES INCORPORATED
Huntington Bancshares Incorporated
, a Maryland corporation (hereinafter called the
Corporation
), hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
First:
Under a power contained in Article Fifth of the charter of the Corporation
(the
Charter
), the Board of Directors of the Corporation (the
Board of Directors
) and a duly
authorized committee thereof (the
Committee
), by duly adopted resolutions, classified and
designated 575,000 shares of the authorized but unissued serial preferred stock of the Corporation,
par value $0.01 per share (the
Serial Preferred Stock
), as 8.50% Series A Non-Cumulative
Perpetual Convertible Preferred Stock, par value $0.01 per share, with the following preferences,
conversion and other rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, and terms and conditions of redemption, which, upon any restatement
of the Charter, shall become part of Article Fifth of the Charter, with any necessary or
appropriate renumbering or relettering of the sections or subsections hereof.
8.50% SERIES A NON-CUMULATIVE PERPETUAL
CONVERTIBLE PREFERRED STOCK
Section 1.
Designation of Series and Number of Shares
. The shares of such series of
Serial Preferred Stock shall be designated 8.50% Series A Non-Cumulative Perpetual Convertible
Preferred Stock (the
Series A Preferred Stock
), and the authorized number of shares that shall
constitute such series shall be 575,000 shares, which may be decreased (but not below the number of
shares of Series A Preferred Stock then outstanding) from time to time by the Board of Directors.
Shares of outstanding Series A Preferred Stock that are purchased or otherwise acquired by the
Corporation shall be cancelled and shall revert to authorized but unissued shares of Serial
Preferred Stock undesignated as to series.
Section 2.
Ranking
. The Series A Preferred Stock will rank, with respect to the
payment of dividends and distributions upon liquidation, dissolution or winding-up, (1) on a parity
with each class or series of preferred stock the Corporation may issue in the future the terms of
which expressly provide that such class or series will rank on a parity with the Series A Preferred
Stock as to dividend rights and rights on liquidation, winding up and dissolution of the
Corporation (collectively, the
Parity Securities
) and (2) senior to Common Stock and each other
class or series of preferred stock the Corporation may issue in the future the terms of which do
not expressly provide that it ranks on a parity with or senior to the Series A Preferred Stock as
to dividend rights and rights on liquidation, winding-up and dissolution of the Corporation (the
Junior Securities
).
Series A Articles Supplementary
Section 3.
Definitions
. As used herein with respect to the Series A Preferred Stock:
(a)
Articles Supplementary
means these Articles Supplementary, dated April
21, 2008 and, upon any restatement of the Charter, shall mean the terms of the
Series A Preferred Stock as set forth in Article Fifth of the Charter.
(b)
Applicable Conversion Price
at any given time means the price equal to
$1,000 divided by the Applicable Conversion Rate in effect at such time.
(c)
Applicable Conversion Rate
means the Conversion Rate in effect at any
given time.
(d)
Base Price
has the meaning set forth in Section 12(a).
(e)
Board of Directors
means the board of directors of the Corporation or any
committee thereof duly authorized to act on behalf of such board of directors.
(f)
Business Day
means any day other than a Saturday, Sunday or any other day
on which banks in New York, New York or Columbus, Ohio are generally required or
authorized by law to be closed.
(g)
Bylaws
means the Amended and Restated Bylaws of the Corporation, as may
be amended from time to time.
(h)
Charter
means the charter of the Corporation, as amended or supplemented
from time to time.
(i)
Closing Price
of the Common Stock on any date of determination means the
NASDAQ Official Closing Price or, if no NASDAQ Official Closing Price is reported,
the last reported sale price of the shares of the Common Stock on the NASDAQ Global
Select Market on such date. If the Common Stock is not traded on the NASDAQ Global
Select Market on any date of determination, the Closing Price of the Common Stock on
such date of determination means the closing sale price as reported in the composite
transactions for the principal U.S. national or regional securities exchange on
which the Common Stock is so listed or quoted, or, if no closing sale price is
reported, the last reported sale price on the principal U.S. national or regional
securities exchange on which the Common Stock is so listed or quoted, or if the
Common Stock is not so listed or quoted on a U.S. national or regional securities
exchange, the last quoted bid price for the Common Stock in the over-the-counter
market as reported by Pink Sheets LLC or similar organization, or, if that bid price
is not available, the market price of the Common Stock on that date as determined by
a nationally recognized independent investment banking firm retained by the
Corporation for this purpose. All references herein to the Closing Price and
last reported sale price of the Common Stock on the NASDAQ Global Select Market
shall be such closing sale price and last reported sale price as reflected on the
website of the NASDAQ Global Select Market (
http://www.nasdaq.com
) and as reported
by Bloomberg Professional Service;
provided
that in the event that there is a
discrepancy between the closing sale price or last reported sale price as reflected
on the website of the NASDAQ Global Select Market and as reported by Bloomberg
Professional Service, the closing sale price and last reported sale price on the
website of the NASDAQ Global Select Market shall govern. If a Reorganization Event
has occurred and (1) the Exchange Property consists only of shares
Series A Articles Supplementary
-2-
of common stock, the Closing Price shall be based on the closing price of
such common stock; (2) the Exchange Property consists only of cash, the Closing
Price shall be the cash amount paid per share; and (3) the Exchange Property
consists of securities, cash and/or other property, the Closing Price shall be
based on the sum, as applicable, of (x) the closing price of such common stock, (y)
the cash amount paid per share and (z) the value (as determined by the Board of
Directors from time-to-time) of any other securities or property paid to the holders
of the Common Stock connection with the Reorganization Event.
(j)
Common Stock
means the common stock, par value $0.01 per share, of the
Corporation.
(k)
Corporation
means Huntington Bancshares Incorporated, a Maryland
corporation.
(l)
Conversion Agent
shall mean the Transfer Agent acting in its capacity as
conversion agent for the Series A Preferred Stock, and its successors and assigns.
(m)
Conversion Date
has the meaning set forth in Section 9(e)(ii).
(n)
Conversion Price
at any time means, for each share of Series A Preferred
Stock, a dollar amount equal to $1,000 divided by the Conversion Rate (initially
approximately $11.95).
(o)
Conversion Rate
means for each share of Series A Preferred Stock, 83.6680
shares of Common Stock, subject to adjustment as set forth herein.
(p)
Current Market Price
means, on any date, the average of the daily Closing
Price per share of the Common Stock or the closing price of any other securities on
each of the five consecutive Trading Days preceding the earlier of the day before
the date in question and the day before the Ex-Date with respect to the issuance or
distribution giving rise to an adjustment to the Conversion Rate pursuant to
Section 13.
(q)
Depositary
means DTC or its nominee or any successor depositary appointed
by the Corporation.
(r)
Dividend Payment Date
has the meaning set forth in Section 4(b).
(s)
Dividend Period
has the meaning set forth in Section 4(b).
(t)
Dividend Threshold Amount
has the meaning set forth in Section 13(a)(v).
(u)
DTC
means The Depository Trust Company and its successors or assigns.
(v)
Effective Date
means the date on which shares of the Series A Preferred
Stock are first issued.
Series A Articles Supplementary
-3-
(w)
Exchange Act
means the Securities Exchange Act of 1934, as amended.
(x)
Exchange Property
has the meaning set forth in Section 14(a).
(y)
Ex-Date
, when used with respect to any issuance or distribution, means
the first date on which the Common Stock or other securities trade without the right
to receive the issuance or distribution giving rise to an adjustment to the
Conversion Rate pursuant to Section 13.
(z)
Fundamental Change
means the occurrence, prior to any Conversion Date, of
one of the following:
(i) a person or group within the meaning of Section 13(d) of
the Exchange Act files a Schedule TO or any schedule, form or report
under the Exchange Act disclosing that such person or group has
become the direct or indirect ultimate beneficial owner, as defined
in Rule 13d-3 under the Exchange Act, of common equity of the
Corporation representing more than 50% of the voting power of the
outstanding Common Stock;
(ii) consummation of any consolidation or merger of the
Corporation or similar transaction or any sale, lease or other
transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Corporation and
its subsidiaries, taken as a whole, to any Person other than one of
the Corporations subsidiaries, in each case pursuant to which the
Common Stock will be converted into, or receive a distribution of the
proceeds in, cash, securities or other property, other than pursuant
to a transaction in which the Persons that beneficially owned (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, voting shares of the Corporation immediately prior to
such transaction beneficially own, directly or indirectly, voting
shares representing a majority of the total voting power of all
outstanding classes of voting shares of the continuing or surviving
Person immediately after the transaction; or
(iii) shares of the Common Stock or shares of any other stock
into which the Series A Preferred Stock is convertible are not listed
for trading on any United States national securities exchange or
cease to be traded in contemplation of a delisting (other than as a
result of a transaction described in clause (ii) above);
provided, however,
that a Fundamental Change with respect to clauses (i) and (ii)
above will not be deemed to have occurred if at least 90% of the consideration
received by holders of the Common Stock in the transaction or transactions consists
of shares of common stock or American Depositary Receipts in respect of common stock
that are traded on a U.S. national securities exchange or that will be so traded
when issued or exchanged in connection with a Fundamental Change.
(aa)
Holder
means the Person in whose name the shares of the Series A
Preferred Stock are registered, which may be treated by the Corporation,
Series A Articles Supplementary
-4-
Transfer Agent, Registrar, paying agent and Conversion Agent as the absolute
owner of the shares of Series A Preferred Stock for the purpose of making payment
and settling the related conversions and for all other purposes.
(bb)
Junior Securities
has the meaning set forth in Section 2.
(cc)
Liquidation Preference
means, as to the Series A Preferred Stock, $1,000
per share.
(dd)
Make-Whole Acquisition
means the occurrence, prior to any Conversion
Date, of one of the following:
(i) a person or group within the meaning of Section 13(d) of
the Exchange Act files a Schedule TO or any schedule, form or report
under the Exchange Act disclosing that such person or group has
become the direct or indirect ultimate beneficial owner, as defined
in Rule 13d-3 under the Exchange Act, of common equity of the
Corporation representing more than 50% of the voting power of the
outstanding Common Stock; or
(ii) consummation of any consolidation or merger of the
Corporation or similar transaction or any sale, lease or other
transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Corporation and
its subsidiaries, taken as a whole, to any Person other than one of
the Corporations subsidiaries, in each case pursuant to which the
Common Stock will be converted into, or receive distributions of the
proceeds in, cash, securities or other property, other than pursuant
to a transaction in which the Persons that beneficially owned (as
defined in Rule 13d-3 under the Exchange Act) directly or indirectly,
voting shares of the Corporation immediately prior to such
transaction beneficially own, directly or indirectly, voting shares
representing a majority of the total voting power of all outstanding
classes of voting shares of the continuing or surviving Person
immediately after the transaction;
provided, however,
that a Make-Whole Acquisition will not be deemed to have occurred
if at least 90% of the consideration received by holders of the Common Stock in the
transaction or transactions consists of shares of common stock or American
Depositary Receipts in respect of common stock that are traded on a U.S. national
securities exchange or that will be so traded when issued or exchanged in connection
with a Make-Whole Acquisition.
(ee)
Make-Whole Acquisition Conversion
has the meaning set forth in
Section 11(a).
(ff)
Make-Whole Acquisition Conversion Period
has the meaning set forth in
Section 11(a).
(gg)
Make-Whole Acquisition Effective Date
has the meaning set forth in
Section 11(a).
Series A Articles Supplementary
-5-
(hh)
Make-Whole Acquisition Stock Price
means the consideration paid per
share of Common Stock in a Make-Whole Acquisition. If such consideration consists
only of cash, the Make-Whole Acquisition Stock Price shall equal the amount of cash
paid per share of Common Stock. If such consideration consists of any property
other than cash, the Make-Whole Acquisition Stock Price shall be the average of the
Closing Price per share of Common Stock on each of the 10 consecutive Trading Days
up to, but not including, the Make-Whole Acquisition Effective Date.
(ii)
Make-Whole Shares
has the meaning set forth in Section 11(b).
(jj)
Mandatory Conversion Date
has the meaning set forth in Section 10(c).
(kk)
Notice of Mandatory Conversion
has the meaning set forth in
Section 10(c).
(ll)
Officer
means the President, the Chief Executive Officer, the Chief
Operating Officer, any Executive Vice President, any Senior Vice President, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Corporation.
(mm)
Officers Certificate
means a certificate of the Corporation, signed by
any duly authorized Officer of the Corporation.
(nn)
Parity Securities
has the meaning set forth in Section 2.
(oo)
Person
means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company or trust.
(pp)
Preferred Stock Directors
has the meaning set forth in Section 15(a).
(qq)
Record Date
has the meaning set forth in Section 4(b).
(rr)
Reference Price
means the price per share of Common Stock in connection
with a Fundamental Change. If the holders of shares of Common Stock receive only
cash in connection with the Fundamental Change, the Reference Price shall be the
cash amount paid per share. Otherwise the Reference Price shall be the average of
the Closing Price per share of Common Stock on each of the 10 Trading Days up to,
but not including, the effective date of the Fundamental Change.
(ss)
Registrar
shall mean the Transfer Agent acting in its capacity as
registrar for the Series A Preferred Stock, and its successors and assigns.
(tt)
Reorganization Event
has the meaning set forth in Section 14(a).
(uu)
Trading Day
means a day on which the shares of Common Stock:
Series A Articles Supplementary
-6-
(i) are not suspended from trading on any national or regional
securities exchange or association or over-the-counter market at the
close of business; and
(ii) have traded at least once on the national or regional
securities exchange or association or over-the-counter market that is
the primary market for the trading of the Common Stock.
(vv)
Transfer Agent
means Computershare Investor Services, Inc. acting as
Transfer Agent, Registrar, paying agent and Conversion Agent for the Series A
Preferred Stock, and its successors and assigns, including any successor transfer
agent appointed by the Corporation.
Section 4.
Dividends
.
(a) From and after the Effective Date, Holders shall be entitled to receive,
when, as and if authorized by the Board of Directors and declared by the
Corporation, out of legally available funds, on a non-cumulative basis, cash
dividends in the amount determined as set forth in Section 4(c), and no more.
(b) Subject to Section 4(a), dividends shall be payable quarterly in arrears on
January 15, April 15, July 15 and October 15 of each year (each, a
Dividend Payment
Date
) commencing on July 15, 2008 or, if any such day is not a Business Day, the
next Business Day. Each dividend will be payable to Holders of record as they
appear in the records of the Corporation at the close of business on the first day
of the month in which the relevant Dividend Payment Date occurs (each, a
Record
Date
). Each period from and including a Dividend Payment Date (or the date of the
issuance of the Series A Preferred Stock) to but excluding the following Dividend
Payment Date is herein referred to as a
Dividend Period
.
(c) Dividends, if, when and as authorized by the Board of Directors and
declared by the Corporation, will be, for each outstanding share of Series A
Preferred Stock, at an annual rate of 8.50% on the $1,000 per share liquidation
preference. Dividends payable for a Dividend Period will be computed on the basis
of a 360-day year of twelve 30-day months. If a scheduled Dividend Payment Date
falls on a day that is not a Business Day, the dividend will be paid on the next
Business Day as if it were paid on the scheduled Dividend Payment Date, and no
interest or other amount will accrue on the dividend so payable for the period from
and after that Dividend Payment Date to the date the dividend is paid. No interest
or sum of money in lieu of interest will be paid on any dividend payment on a
Series A Preferred Stock paid later than the scheduled Dividend Payment Date.
(d) Dividends on the Series A Preferred Stock are non-cumulative. If the Board
of Directors does not authorize and the Corporation does not declare a dividend on
the Series A Preferred Stock or if the if Board of Directors authorizes and the
Corporation declares less than a full dividend in respect of any Dividend Period,
the Holders will have no right to receive any dividend or a full dividend, as the
case may be, for the Dividend Period, and the Corporation will have no obligation to
pay a dividend or to pay full dividends for that Dividend Period, whether or not
dividends are authorized, declared and paid for any future Dividend Period with
respect to the Series A Preferred
Series A Articles Supplementary
-7-
Stock or the Common Stock or any other class or series of the Corporations
preferred stock.
(e) If full quarterly dividends on all outstanding shares of the Series A
Preferred Stock for any Dividend Period have not been authorized, declared, and paid
or set aside for payment, the Corporation shall not declare or pay dividends with
respect to, or redeem, purchase or acquire any of, its Junior Securities during the
next succeeding Dividend Period, other than:
(i) redemptions, purchases or other acquisitions of Junior
Securities in connection with any benefit plan or other similar
arrangement with or for the benefit of any one or more employees,
officers, directors or consultants or in connection with a dividend
reinvestment or shareholder stock purchase plan;
(ii) any declaration of a dividend in connection with any
stockholders rights plan, including with respect to any successor
stockholders rights plan, or the issuance of rights, stock or other
property under any stockholders rights plan, including with respect
to any successor stockholders rights plan, or the redemption or
repurchase of rights pursuant thereto; and
(iii) conversions into or exchanges for other Junior Securities
and cash solely in lieu of fractional shares of the Junior
Securities.
If dividends for any Dividend Payment Date are not paid in full on the shares of the
Series A Preferred Stock and there are issued and outstanding shares of Parity
Securities with the same Dividend Payment Date, then all dividends declared on
shares of the Series A Preferred Stock and such Parity Securities on such date shall
be declared
pro rata
so that the respective amounts of such dividends shall bear the
same ratio to each other as full quarterly dividends per share on the shares of the
Series A Preferred Stock and all such Parity Securities otherwise payable on such
Dividend Payment Date (subject to their having been authorized by the Board of
Directors and declared by the Corporation out of legally available funds and
including, in the case of any such Parity Securities that bear cumulative dividends,
all accrued but unpaid dividends) bear to each other.
(f) Payments of cash for dividends will be delivered to the Holder or, in the
case of global certificates, through a book-entry transfer through DTC or any
successor Depositary.
(g) If a Conversion Date on which a Holder elects to convert Series A Preferred
Stock or the Mandatory Conversion Date is on or prior to the Record Date for any
declared dividend for the Dividend Period, such Holder will not have the right to
receive any declared dividends for that Dividend Period. If a Conversion Date on
which a Holder elects to convert Series A Preferred Stock or the Mandatory
Conversion Date is after the Record Date for any declared dividend and prior to the
Dividend Payment Date, such Holder shall receive that dividend on the relevant
Dividend Payment Date if such Holder was the Holder of record on the Record Date for
that dividend. Notwithstanding the preceding sentence, whether or not such Holder
was the Holder of record on the Record Date, the Holder must pay to the Conversion
Agent upon conversion of the shares
Series A Articles Supplementary
-8-
of Series A Preferred Stock an amount in cash equal to the full dividend
actually paid on such Dividend Payment Date on the shares being converted, unless
the shares of Series A Preferred Stock are converted pursuant to Section 10,
Section 11 or Section 12.
Section 5.
Liquidation
.
(a) In the event the Corporation voluntarily or involuntarily liquidates,
dissolves or winds up, the Holders at the time shall be entitled to receive
liquidating distributions in the amount of $1,000 per share of Series A Preferred
Stock, plus an amount equal to any authorized and declared but unpaid dividends
thereon to and including the date of such liquidation, out of assets legally
available for distribution to the Corporations stockholders, before any
distribution of assets is made to the holders of the Common Stock or any other
Junior Securities. After payment of the full amount of such liquidating
distributions, the Holders will not be entitled to any further participation in any
distribution of assets by, and shall have no right or claim to any remaining assets
of, the Corporation.
(b) In the event the assets of the Corporation available for distribution to
stockholders upon any liquidation, dissolution or winding-up of the affairs of the
Corporation, whether voluntary or involuntary, shall be insufficient to pay in full
the amounts payable with respect to all outstanding shares of the Series A Preferred
Stock and the corresponding amounts payable on any Parity Securities, Holders and
the holders of such Parity Securities shall share ratably in any distribution of
assets of the Corporation in proportion to the full respective liquidating
distributions to which they would otherwise be respectively entitled.
(c) The Corporations consolidation or merger with or into any other entity,
the consolidation or merger of any other entity with or into the Corporation, or the
sale of all or substantially all of the Corporations property or business will not
constitute its liquidation, dissolution or winding up.
(d) In determining whether a distribution (other than upon voluntary or
involuntary liquidation) on the Series A Preferred Stock, by dividend, redemption or
other acquisition of shares of stock of the Corporation or otherwise, is permitted
under the Maryland General Corporation Law, amounts that would be needed, if the
Corporation were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of holders of shares of Series A Preferred
Stock shall not be added to the Corporations total liabilities.
Section 6.
Maturity
. The Series A Preferred Stock shall be perpetual unless converted
in accordance with these Articles Supplementary.
Section 7.
Redemptions
. The Series A Preferred Stock shall not be redeemable either
at the Corporations option or at the option of Holders at any time. The Series A Preferred Stock
shall not be subject to any sinking fund or other obligation to redeem, repurchase or retire the
Series A Preferred Stock.
Section 8.
Right to Convert
. Each Holder shall have the right, at such Holders
option, to convert all or any portion of such Holders Series A Preferred Stock into shares of
Common Stock at the Applicable Conversion Rate per share of Series A Preferred Stock (subject to
the conversion procedures of Section 9) plus cash in lieu of fractional shares.
Series A Articles Supplementary
-9-
Section 9.
Conversion Procedures
.
(a) Effective immediately prior to the close of business on the Mandatory
Conversion Date or any applicable Conversion Date, dividends shall no longer be
authorized and declared on any converted shares of Series A Preferred Stock and such
shares of Series A Preferred Stock shall cease to be outstanding, in each case,
subject to the right of Holders to receive any authorized, declared and unpaid
dividends on such shares and any other payments to which they are otherwise entitled
pursuant to Section 8, Section 10, Section 11, Section 12, Section 14 or Section 16,
as applicable.
(b) No allowance or adjustment, except pursuant to Section 13, shall be made in
respect of dividends payable to holders of the Common Stock of record as of any date
prior to the close of business on the Mandatory Conversion Date or any applicable
Conversion Date. Prior to the close of business on the Mandatory Conversion Date or
any applicable Conversion Date, shares of Common Stock issuable upon conversion of,
or other securities issuable upon conversion of, any shares of Series A Preferred
Stock shall not be deemed outstanding for any purpose, and Holders shall have no
rights with respect to the Common Stock or other securities issuable upon conversion
(including voting rights, rights to respond to tender offers for the Common Stock or
other securities issuable upon conversion and rights to receive any dividends or
other distributions on the Common Stock or other securities issuable upon
conversion) by virtue of holding shares of Series A Preferred Stock.
(c) Shares of Series A Preferred Stock duly converted in accordance with these
Articles Supplementary, or otherwise reacquired by the Corporation, will resume the
status of authorized and unissued serial preferred stock, undesignated as to
series and available for future issuance. The Corporation may from time-to-time
take such appropriate action as may be necessary to reduce the authorized number of
shares of Series A Preferred Stock, but not below the number of shares of Series A
Preferred Stock then outstanding.
(d) The Person or Persons entitled to receive the Common Stock and/or cash,
securities or other property issuable upon conversion of Series A Preferred Stock
shall be treated for all purposes as the record holder(s) of such shares of Common
Stock and/or securities as of the close of business on the Mandatory Conversion Date
or any applicable Conversion Date. In the event that a Holder shall not by written
notice designate the name in which shares of Common Stock and/or cash, securities or
other property (including payments of cash in lieu of fractional shares) to be
issued or paid upon conversion of shares of Series A Preferred Stock should be
registered or paid or the manner in which such shares should be delivered, the
Corporation shall be entitled to register and deliver such shares, and make such
payment, in the name of the Holder and in the manner shown on the records of the
Corporation or, in the case of global certificates or uncertificated shares, through
book-entry transfer through the Depositary.
(e) Conversion into shares of Common Stock will occur on the Mandatory
Conversion Date or any applicable Conversion Date as follows:
(i) On the Mandatory Conversion Date, shares of Common Stock
shall be issued to Holders or their designee upon presentation and
surrender of the certificate evidencing the Series A Preferred Stock
to the Conversion Agent, if shares of the Series A Preferred Stock
are held in
Series A Articles Supplementary
-10-
certificated form, and, if required, the furnishing of
appropriate endorsements and transfer documents and the payment of
all transfer and similar taxes. If a Holders interest is a
beneficial interest in a global certificate representing Series A
Preferred Stock, a book-entry transfer through the Depositary will be
made by the Conversion Agent upon compliance with the Depositarys
procedures for converting a beneficial interest in a global security.
(ii) On the date of any conversion at the option of a Holder
pursuant to Section 8, Section 11 or Section 12, if a Holders
interest is in certificated form, a Holder must do each of the
following in order to convert:
(A) complete and manually sign the conversion notice provided by the
Conversion Agent, or a facsimile of the conversion notice, and deliver this
irrevocable notice to the Conversion Agent;
(B) surrender the shares of Series A Preferred Stock to the Conversion
Agent;
(C) if required, furnish appropriate endorsements and transfer
documents;
(D) if required, pay all transfer or similar taxes; and
(E) if required, pay funds equal to any authorized, declared and unpaid
dividend payable on the next Dividend Payment Date to which such Holder is
entitled.
If a Holders interest is a beneficial interest in a global certificate representing
Series A Preferred Stock, in order to convert, such Holder must comply with
paragraphs (C) through (E) of this clause (ii) and comply with the Depositarys
procedures for converting a beneficial interest in a global security. The date on
which a Holder complies with the procedures in this clause (ii) is the
Conversion
Date
.
(iii) The Conversion Agent shall, on a Holders behalf, convert
the Series A Preferred Stock into shares of Common Stock, in
accordance with the terms of the notice delivered by such Holder
described in Section 9(e)(ii).
Section 10.
Mandatory Conversion at the Corporations Option
.
(a) On or after April 15, 2013, the Corporation shall have the right, at its
option, at any time or from time to time to cause some or all of the Series A
Preferred Stock to be converted into shares of Common Stock at the then Applicable
Conversion Rate if, for 20 Trading Days within any period of 30 consecutive Trading
Days (including the last Trading Day of such period), ending on the Trading Day
preceding the date the Corporation delivers a Notice of Mandatory Conversion, the
Closing Price of the Common Stock exceeds 130% of the then Applicable Conversion
Price of the Series A Preferred Stock.
Series A Articles Supplementary
-11-
(b) If the Corporation elects to cause less than all of the shares of Series A
Preferred Stock to be converted under Section 10(a), the Conversion Agent shall
select the Series A Preferred Stock to be converted by lot, on a
pro rata
basis or
by another method the Conversion Agent considers fair and appropriate, including any
method required by DTC or any successor Depositary. If the Conversion Agent selects
a portion of a Holders Series A Preferred Stock for partial mandatory conversion
and such Holder converts a portion of its shares of Series A Preferred Stock, the
converted portion will be deemed to be from the portion selected for mandatory
conversion under this Section 10.
(c) In order to exercise the mandatory conversion right described in this
Section 10, the Corporation shall provide notice of such conversion to each Holder
(such notice, a
Notice of Mandatory Conversion
) or issue a press release for
publication and make this information available on its website, if any. The
Conversion Date shall be a date selected by the Corporation (the
Mandatory
Conversion Date
) and shall be no more than 20 days after the date on which the
Corporation provides such Notice of Mandatory Conversion or issues such press
release. In addition to any information required by applicable law or regulation,
the Notice of Mandatory Conversion and press release shall state, as appropriate:
(i) the Mandatory Conversion Date;
(ii) the number of shares of Common Stock to be issued upon
conversion of each share of Series A Preferred Stock; and
(iii) the number of shares of Series A Preferred Stock to be
converted.
Section 11.
Conversion upon Make-Whole Acquisition
.
(a) In the event of a Make-Whole Acquisition, each Holder shall have the option
to convert its shares of Series A Preferred Stock (a
Make-Whole Acquisition
Conversion
) during the period (the
Make-Whole Acquisition Conversion Period
)
beginning on the effective date of the Make-Whole Acquisition (the
Make-Whole
Acquisition Effective Date
) and ending on the date that is 30 days after the
Make-Whole Acquisition Effective Date and receive an additional number of shares of
Common Stock in the form of Make-Whole Shares as set forth in Section 11(b).
(b) The number of
Make-Whole Shares
shall be determined for the Series A
Preferred Stock by reference to the table below for the applicable Make-Whole
Acquisition Effective Date and the applicable Make-Whole Acquisition Stock Price:
Series A Articles Supplementary
-12-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effective Date
|
|
$9.96
|
|
$11.00
|
|
$12.00
|
|
$15.00
|
|
$18.00
|
|
$21.00
|
|
$25.00
|
|
$30.00
|
|
$35.00
|
|
$40.00
|
|
$45.00
|
|
$55.00
|
|
$75.00
|
|
$100.00
|
April 22, 2008
|
|
|
16.7336
|
|
|
|
15.1515
|
|
|
|
13.8889
|
|
|
|
11.1111
|
|
|
|
9.2593
|
|
|
|
7.9365
|
|
|
|
6.3892
|
|
|
|
4.8823
|
|
|
|
3.9124
|
|
|
|
3.2340
|
|
|
|
2.7308
|
|
|
|
2.0296
|
|
|
|
1.2279
|
|
|
|
0.7067
|
|
April 15, 2009
|
|
|
16.7336
|
|
|
|
15.1515
|
|
|
|
13.8889
|
|
|
|
11.1111
|
|
|
|
9.1734
|
|
|
|
7.0636
|
|
|
|
5.3445
|
|
|
|
4.0645
|
|
|
|
3.2573
|
|
|
|
2.6980
|
|
|
|
2.2843
|
|
|
|
1.7067
|
|
|
|
1.0405
|
|
|
|
0.6017
|
|
April 15, 2010
|
|
|
16.7336
|
|
|
|
15.1515
|
|
|
|
13.8889
|
|
|
|
10.7040
|
|
|
|
7.4705
|
|
|
|
5.6201
|
|
|
|
4.1862
|
|
|
|
3.1678
|
|
|
|
2.5437
|
|
|
|
2.1156
|
|
|
|
1.7989
|
|
|
|
1.3543
|
|
|
|
0.8346
|
|
|
|
0.4867
|
|
April 15, 2011
|
|
|
16.7336
|
|
|
|
15.1515
|
|
|
|
13.8889
|
|
|
|
8.5255
|
|
|
|
5.5674
|
|
|
|
4.0178
|
|
|
|
2.9242
|
|
|
|
2.2090
|
|
|
|
1.7871
|
|
|
|
1.4984
|
|
|
|
1.2828
|
|
|
|
0.9759
|
|
|
|
0.6112
|
|
|
|
0.3630
|
|
April 15, 2012
|
|
|
16.7336
|
|
|
|
15.1515
|
|
|
|
12.1688
|
|
|
|
5.8987
|
|
|
|
3.2603
|
|
|
|
2.1521
|
|
|
|
1.5345
|
|
|
|
1.1875
|
|
|
|
0.9818
|
|
|
|
0.8344
|
|
|
|
0.7208
|
|
|
|
0.5558
|
|
|
|
0.3579
|
|
|
|
0.2218
|
|
April 15, 2013 and
after
|
|
|
16.7336
|
|
|
|
14.4346
|
|
|
|
10.2869
|
|
|
|
1.2849
|
|
|
|
0.0005
|
|
|
|
0.0006
|
|
|
|
0.0006
|
|
|
|
0.0001
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
(i) If the exact Make-Whole Acquisition Stock Price or
Make-Whole Acquisition Effective Date is not set forth on the table:
(A) if the Make-Whole Acquisition Stock Price is between two Make-Whole
Acquisition Stock Price amounts on the table or the Make-Whole Acquisition
Effective Dates are between two dates on the table, the number of Make-Whole
Shares will be determined by straight-line interpolation between the number
of Make-Whole Shares set forth for the higher and lower Make-Whole
Acquisition Stock Price amounts and the two Make-Whole Acquisition Effective
Dates, as applicable, based on a 365-day year;
(B) if the Make-Whole Acquisition Stock Price is in excess of $100 per
share (subject to adjustment pursuant to Section 13), no Make-Whole Shares
will be issued upon conversion of the Series A Preferred Stock; and
(C) if the Make-Whole Acquisition Stock Price is less than $9.96 per
share (subject to adjustment pursuant to Section 13), no Make-Whole Shares
will be issued upon conversion of the Series A Preferred Stock.
(ii) The Make-Whole Acquisition Stock Prices set forth in the
table above are subject to adjustment pursuant to Section 13 and
shall be adjusted as of any date the Conversion Rate is adjusted.
The adjusted Make-Whole Acquisition Stock Prices shall equal the
Make-Whole Acquisition Stock Prices applicable immediately prior to
such adjustment multiplied by a fraction, the numerator of which is
the Conversion Rate immediately prior to the adjustment giving rise
to the Make-Whole Acquisition Stock Prices adjustment and the
denominator of which is the Conversion Rate as so adjusted. Each of
the number of Make-Whole Shares in the table shall also be subject to
adjustment in the same manner as the Conversion Rate pursuant to
Section 13.
(c) On or before the twentieth day prior to the date on which the Corporation
anticipates consummating the Make-Whole Acquisition (or, if later, within two
Business Days after the Corporation becomes aware of a Make-Whole Acquisition
described in clause (i) of the definition of such term), a written notice shall be
sent by or on behalf of the Corporation, by first-class mail, postage prepaid, to
the Holders as they appear in the records of the Corporation. Such notice shall
contain:
Series A Articles Supplementary
-13-
(i) the date on which the Make-Whole Acquisition is anticipated
to be effected;
(ii) the date, which shall be 30 days after the anticipated
Make-Whole Acquisition Effective Date, by which the Make-Whole
Acquisition conversion option must be exercised;
(iii) the amount of cash, securities and other consideration
payable per share of Common Stock or Series A Preferred Stock,
respectively; and
(iv) the instructions a Holder must follow to exercise its
conversion option in connection with such Make-Whole Acquisition.
(d) To exercise a Make-Whole Acquisition Conversion option, a Holder must, no
later than 5:00 p.m., New York City time on the date by which the Make-Whole
Acquisition Conversion option must be exercised as specified in the notice delivered
under Section 11(c), comply with the procedures set forth in Section 9(e)(ii).
(e) If a Holder does not elect to exercise the Make-Whole Acquisition
Conversion option pursuant to this Section 11, the shares of Series A Preferred
Stock or successor securities held by it shall remain outstanding but shall not be
eligible to receive Make-Whole Shares.
(f) Upon a Make-Whole Acquisition Conversion, the Conversion Agent shall,
except as otherwise provided in the instructions provided by the Holder thereof in
the written notice provided to the Corporation or its successor as set forth in
Section 9(d), deliver to the Holder such cash, securities or other property as are
issuable with respect to Make-Whole Shares in the Make-Whole Acquisition.
(g) In the event that a Make-Whole Acquisition Conversion is effected with
respect to shares of Series A Preferred Stock or successor securities representing
less than all the shares of Series A Preferred Stock or successor securities held by
a Holder, upon such Make-Whole Acquisition Conversion the Corporation or its
successor shall execute and the Conversion Agent shall, unless otherwise instructed
in writing, countersign and deliver to the Holder thereof, at the expense of the
Corporation or its successors, a certificate evidencing the shares of Series A
Preferred Stock or such successor securities held by the Holder as to which a
Make-Whole Acquisition Conversion was not effected.
Section 12.
Conversion upon Fundamental Change
.
(a) If the Reference Price in connection with a Fundamental Change is less than
the Applicable Conversion Price, a Holder may convert each share of Series A
Preferred Stock during the period beginning on the effective date of the Fundamental
Change and ending on the date that is 30 days after the effective date of such
Fundamental Change at an adjusted conversion price equal to the greater of (1) the
Reference Price and (2) $4.98, subject to adjustment as described in Section 12(b)
(the
Base Price
).
Series A Articles Supplementary
-14-
(b) The Base Price shall be adjusted as of any date the Conversion Rate of the
Series A Preferred Stock is adjusted pursuant to Section 13. The adjusted Base
Price shall equal the Base Price applicable immediately prior to such adjustment
multiplied by a fraction, the numerator of which is the Conversion Rate immediately
prior to the adjustment giving rise to the Base Price adjustment and the denominator
of which is the Conversion Rate as so adjusted. If the Reference Price is less than
the Base Price, Holders shall receive a maximum of 200.8032 shares of Common Stock
per share of Series A Preferred Stock, subject to adjustment.
(c) In lieu of issuing Common Stock upon conversion in the event of a
Fundamental Change, the Corporation may at its option, and if it obtains any
necessary regulatory approval, pay an amount in cash (computed to the nearest cent)
equal to the Reference Price for each share of Common Stock otherwise issuable upon
conversion.
(d) On or before the twentieth day prior to the date on which the Corporation
anticipates consummating the Fundamental Change (or, if later, within two Business
Days after the Corporation becomes aware of a Fundamental Change described in clause
(i) of the definition of such term), a written notice shall be sent by or on behalf
of the Corporation, by first-class mail, postage prepaid, to the Holders as they
appear in the records of the Corporation. Such notice shall contain:
(i) the date on which the Fundamental Change is anticipated to
be effected; and
(ii) the date, which shall be 30 days after the anticipated
effective date of a Fundamental Change, by which the Fundamental
Change conversion option must be exercised.
(e) On the effective date of a Fundamental Change, another written notice shall
be sent by or on behalf of the Corporation, by first-class mail, postage prepaid, to
the Holders as they appear in the records of the Corporation. Such notice shall
contain:
(i) the date that shall be 30 days after the effective date of
the Fundamental Change;
(ii) the adjusted conversion price following the Fundamental
Change;
(iii) the amount of cash, securities and other consideration
payable per share of Common Stock or Series A Preferred Stock,
respectively; and
(iv) and the instructions a Holder must follow to exercise its
conversion option in connection with such Fundamental Change.
(f) To exercise its conversion option upon a Fundamental Change, a Holder must,
no later than 5:00 p.m., New York City time on the date by which the conversion
option upon the Fundamental Change must be exercised as specified in the notice
delivered under Section 12(e), comply with the procedures set forth in
Section 9(e)(ii).
Series A Articles Supplementary
-15-
(g) If a Holder does not elect to exercise its conversion option upon a
Fundamental Change pursuant to this Section 12, the shares of Series A Preferred
Stock or successor securities held by it will remain outstanding.
(h) Upon a conversion upon a Fundamental Change, the Conversion Agent shall,
except as otherwise provided in the instructions provided by the Holder thereof in
the written notice provided to the Corporation or its successor as set forth in
Section 9(d), deliver to the Holder such cash, securities or other property as are
issuable with respect to the adjusted conversion price following the Fundamental
Change.
(i) In the event that a conversion upon a Fundamental Change is effected with
respect to shares of Series A Preferred Stock or successor securities representing
less than all the shares of Series A Preferred Stock or successor securities held by
a Holder, upon such conversion the Corporation or its successor shall execute and
the Conversion Agent shall, unless otherwise instructed in writing, countersign and
deliver to the Holder thereof, at the expense of the Corporation, a certificate
evidencing the shares of Series A Preferred Stock or such successor securities held
by the Holder as to which a conversion upon a Fundamental Change was not effected.
Section 13.
Anti-Dilution Adjustments
.
(a) The Conversion Rate shall be subject to the following adjustments
(i)
Stock Dividends and Distributions
. If the
Corporation pays dividends or other distributions on the Common Stock
in shares of Common Stock, then the Conversion Rate in effect
immediately prior to the Ex-Date for such dividend or distribution
will be multiplied by the following fraction
OS
1
OS
o
|
|
|
Where,
|
|
|
|
|
|
OS
0
=
|
|
the number of shares of Common Stock outstanding immediately prior
to Ex-Date for such dividend or distribution.
|
|
|
|
OS
1
=
|
|
the sum of the number of shares of Common Stock outstanding
immediately prior to the Ex-Date for such dividend or distribution plus the
total number of shares of Common Stock constituting such dividend or
distribution.
|
For the purposes of this clause (i), the number of shares of Common Stock at the
time outstanding shall not include shares acquired by the Corporation. If any
dividend or distribution described in this clause (i) is authorized and declared but
not so paid or made, the Conversion Rate shall be readjusted, effective as of the
date the Board of Directors publicly announces its decision not to make such
dividend or distribution, to such Conversion Rate that would be in effect if such
dividend or distribution had not been declared.
(ii)
Subdivisions, Splits and Combination of the Common
Stock
. If the Corporation subdivides, splits or combines the
shares of Common Stock, then the Conversion Rate in effect
immediately prior to the
Series A Articles Supplementary
-16-
effective date of such share subdivision, split or combination
will be multiplied by the following fraction:
OS
1
OS
o
|
|
|
Where,
|
|
|
|
|
|
OS
0
=
|
|
the number of shares of Common Stock outstanding immediately prior
to the effective date of such share subdivision, split or combination.
|
|
|
|
OS
1
=
|
|
the number of shares of Common Stock outstanding immediately after
the opening of business on the effective date of such share subdivision, split
or combination.
|
For the purposes of this clause (ii), the number of shares of Common Stock at the
time outstanding shall not include shares acquired by the Corporation. If any
subdivision, split or combination described in this clause (ii) is announced but the
outstanding shares of Common Stock are not subdivided, split or combined, the
Conversion Rate shall be readjusted, effective as of the date the Board of Directors
publicly announces its decision not to subdivide, split or combine the outstanding
shares of Common Stock, to such Conversion Rate that would be in effect if such
subdivision, split or combination had not been announced.
(iii)
Issuance of Stock Purchase Rights
. If the
Corporation issues to all or substantially all holders of the shares
of Common Stock rights or warrants (other than rights or warrants
issued pursuant to a dividend reinvestment plan or share purchase
plan or other similar plans) entitling them, for a period of up to 45
days from the date of issuance of such rights or warrants, to
subscribe for or purchase the shares of Common Stock at less than the
Current Market Price on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, then the
Conversion Rate in effect immediately prior to the Ex-Date for such
distribution will be multiplied by the following fraction:
OS
o
+ X
OS
o
+ Y
|
|
|
Where,
|
|
|
|
|
|
OS
0
=
|
|
the number of shares of Common Stock outstanding immediately prior
to the Ex-Date for such distribution.
|
|
|
|
X =
|
|
the total number of shares of Common Stock issuable pursuant to
such rights or warrants.
|
|
|
|
Y =
|
|
the number of shares of Common Stock equal to the aggregate
price payable to exercise such rights or warrants divided by the Current Market
Price.
|
For the purposes of this clause (iii), the number of shares of Common Stock at the
time outstanding shall not include shares acquired by the Corporation. The
Corporation shall not issue any such rights or warrants in respect of shares of the
Common Stock acquired by the Corporation. In the event that such rights or warrants
described in this clause (iii)
Series A Articles Supplementary
-17-
are not so issued, the Conversion Rate shall be readjusted, effective as of the date
the Board of Directors publicly announces its decision not to issue such rights or
warrants, to the Conversion Rate that would then be in effect if such issuance had
not been declared. To the extent that such rights or warrants are not exercised
prior to their expiration or shares of Common Stock are otherwise not delivered
pursuant to such rights or warrants upon the exercise of such rights or warrants,
the Conversion Rate shall be readjusted to such Conversion Rate that would then be
in effect had the adjustment made upon the issuance of such rights or warrants been
made on the basis of the delivery of only the number of shares of Common Stock
actually delivered. In determining the aggregate offering price payable for such
shares of Common Stock, there shall be taken into account any consideration received
for such rights or warrants and the value of such consideration (if other than cash,
to be determined by the Board of Directors).
(iv)
Debt or Asset Distributions
. If the Corporation
distributes to all or substantially all holders of shares of Common
Stock evidences of indebtedness, shares of capital stock, securities,
cash or other assets (excluding any dividend or distribution referred
to in clause (i) of this Section 13(a), any rights or warrants
referred to in clause (iii) of this Section 13(a), any dividend or
distribution paid exclusively in cash, any consideration payable in
connection with a tender or exchange offer made by the Corporation or
any of its subsidiaries, and any dividend of shares of capital stock
of any class or series, or similar equity interests, of or relating
to a subsidiary or other business unit in the case of certain
spin-off transactions as described below), then the Conversion Rate
in effect immediately prior to the Ex-Date for such distribution will
be multiplied by the following fraction:
SP
0
SP
0
- FMV
|
|
|
Where,
|
|
|
|
|
|
SP
0
=
|
|
the Current Market Price per share of Common Stock on such date.
|
|
|
|
FMV =
|
|
the fair market value of the portion of the distribution applicable to one
share of Common Stock on such date as determined by the Board of Directors.
|
In a spin-off, where the Corporation makes a distribution to all or substantially
all holders of shares of Common Stock consisting of capital stock of any class or
series, or similar equity interests of, or relating to, a subsidiary or other
business unit, the Conversion Rate will be adjusted on the fifteenth Trading Day
after the effective date of the distribution by multiplying such Conversion Rate in
effect immediately prior to such fifteenth Trading Day by the following fraction:
MP
0
+ MPs
MP
0
|
|
|
Where,
|
|
|
|
|
|
MP
0
=
|
|
the average of the Closing Prices of the Common Stock over the
first ten Trading Days commencing on and including the fifth Trading Day
following the effective date of such distribution.
|
Series A Articles Supplementary
-18-
|
|
|
MP
S
=
|
|
the average of the Closing Prices of the capital stock or equity
interests representing the portion of the distribution applicable to one share
of Common Stock over the first ten Trading Days commencing on and including the
fifth Trading Day following the effective date of such distribution, or, if not
traded on a national or regional securities exchange or over-the-counter
market, the fair market value of the capital stock or equity interests
representing the portion of the distribution applicable to one share of Common
Stock on such date as determined by the Board of Directors.
|
In the event that such distribution described in this clause (iv) is not so paid or
made, the Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to pay or make such dividend or
distribution, to the Conversion Rate that would then be in effect if such dividend
or distribution had not been declared.
(v)
Cash Distributions
. If the Corporation makes a
distribution consisting exclusively of cash to all or substantially
all holders of the Common Stock, excluding (a) any cash dividend on
the Common Stock to the extent that the aggregate cash dividend per
share of the Common Stock does not exceed $0.1325 in any fiscal
quarter (the
Dividend Threshold Amount
), (b) any cash that is
distributed in a Reorganization Event or as part of a spin-off
referred to in clause (iv) of this Section 13(a), (c) any dividend or
distribution in connection with the Corporations liquidation,
dissolution or winding up, and (d) any consideration payable in
connection with a tender or exchange offer made by the Corporation or
any of its subsidiaries, then in each event, the Conversion Rate in
effect immediately prior to the Ex-Date for such distribution will be
multiplied by the following fraction:
SP
0
SP
0
- DIV
|
|
|
Where,
|
|
|
|
|
|
SP
0
=
|
|
the Closing Price per share of Common Stock on the Ex-Date.
|
|
|
|
DIV =
|
|
the amount per share of Common Stock of the dividend or distribution, as
determined pursuant to the following paragraph.
|
If an adjustment is required to be made as set forth in this clause (v) as a result
of a distribution (1) that is a regularly scheduled quarterly dividend, such
adjustment would be based on the amount by which such dividend exceeds the Dividend
Threshold Amount or (2) that is not a regularly scheduled quarterly dividend, such
adjustment would be based on the full amount of such distribution. The Dividend
Threshold Amount is subject to adjustment on an inversely proportional basis
whenever the Conversion Rate is adjusted; provided that no adjustment will be made
to the Dividend Threshold Amount for any adjustment made to the Conversion Rate
pursuant to this clause (v). In the event that any distribution described in this
clause (v) is not so made, the Conversion Rate shall be readjusted, effective as of
the date the Board of Directors publicly announces its decision not to pay such
distribution, to the Conversion Rate which would then be in effect if such
distribution had not been declared.
Series A Articles Supplementary
-19-
(vi)
Self Tender Offers and Exchange Offers
. If the
Corporation or any of its subsidiaries successfully completes a
tender or exchange offer for the Common Stock where the cash and the
value of any other consideration included in the payment per share of
the Common Stock exceeds the Closing Price per share of the Common
Stock on the Trading Day immediately succeeding the expiration of the
tender or exchange offer, then the Conversion Rate in effect at the
close of business on such immediately succeeding Trading Day will be
multiplied by the following fraction:
AC + (SP
0
x OS
1
)
OS
0
x SP
0
|
|
|
Where,
|
|
|
|
|
|
SP
0
=
|
|
the Closing Price per share of Common Stock on the Trading Day
immediately succeeding the expiration of the tender or exchange offer.
|
|
|
|
OS
0
=
|
|
the number of shares of Common Stock outstanding immediately prior
to the expiration of the tender or exchange offer, including any shares validly
tendered and not withdrawn.
|
|
|
|
OS
1
=
|
|
the number of shares of Common Stock outstanding immediately after
the expiration of the tender or exchange offer.
|
|
|
|
AC =
|
|
the aggregate cash and fair market value of the other
consideration payable in the tender or exchange offer, as determined by the
Board of Directors. In the event that the Corporation, or one of its subsidiaries, is obligated
to purchase shares of Common Stock pursuant to any such tender offer or
exchange offer, but the Corporation, or such subsidiary, is permanently
prevented by applicable law from effecting any such purchases, or all such
purchases are rescinded, then the Conversion Rate shall be readjusted to be
such Conversion Rate that would then be in effect if such tender offer or
exchange offer had not been made.
|
|
|
|
(vii)
Rights Plans
. To the extent that the Corporation
has a rights plan in effect with respect to the Common Stock on any
Conversion Date, upon conversion of any shares of the Series A
Preferred Stock, Holders will receive, in addition to the shares of
Common Stock, the rights under the rights plan, unless, prior to such
Conversion Date, the rights have separated from the shares of Common
Stock, in which case the Conversion Rate will be adjusted at the time
of separation as if the Corporation had made a distribution to all
holders of the Common Stock as described in clause (iv) of this
Section 13(a), subject to readjustment in the event of the
expiration, termination or redemption of such rights.
(b) The Corporation may make such increases in the Conversion Rate, in addition
to any other increases required by this Section 13, if the Board of Directors deems
it advisable to avoid or diminish any income tax to holders of the Common Stock
resulting from any dividend or distribution of shares of Common Stock (or issuance
of
Series A Articles Supplementary
-20-
rights or warrants to acquire shares of Common Stock) or from any event treated
as such for income tax purposes or for any other reason.
(c) All adjustments to the Conversion Rate shall be calculated to the nearest
1/10,000th of a share (or, if there is not a nearest 1/10,000th of a share, to the
next lower 1/10,000th of a share) of Common Stock. No adjustment in the Conversion
Rate shall be required unless such adjustment would require an increase or decrease
of at least one percent therein;
provided, however,
that any adjustments which by
reason of this subparagraph are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; provided further that on the
Mandatory Conversion Date, the Make-Whole Acquisition Effective Date or the
effective date of a Fundamental Change, adjustments to the Conversion Rate will be
made with respect to any such adjustment carried forward and which has not been
taken into account before such date.
(d) No adjustment to the Conversion Rate shall be made if Holders may
participate in the transaction that would otherwise give rise to an adjustment, as a
result of holding the Series A Preferred Stock, without having to convert the
Series A Preferred Stock, as if they held the full number of shares of Common Stock
into which a share of the Series A Preferred Stock may then be converted.
(e) The Applicable Conversion Rate shall not be adjusted:
(i) upon the issuance of any shares of the Common Stock pursuant
to any present or future plan providing for the reinvestment of
dividends or interest payable on the Corporations securities and the
investment of additional optional amounts in shares of Common Stock
under any plan;
(ii) upon the issuance of any shares of the Common Stock or
rights or warrants to purchase those shares pursuant to any present
or future employee, director or consultant benefit plan or program of
or assumed by the Corporation or any of its subsidiaries;
(iii) upon the issuance of any shares of the Common Stock
pursuant to any option, warrant, right or exercisable, exchangeable
or convertible security outstanding as of the date shares of the
Series A Preferred Stock were first issued;
(iv) for a change in the par value or no par value of the Common
Stock; or
(v) for accrued and unpaid dividends on the Series A Preferred
Stock.
(f) Whenever the Conversion Rate is to be adjusted in accordance with
Section 13(a) or Section 13(b), the Corporation shall:
(i) as soon as practicable following the occurrence of an event
that requires an adjustment to the Conversion Rate pursuant to
Section 13(a) or Section 13(b), taking into account the one percent
threshold set forth in Section 13(c) (or if the Corporation is not
aware of
Series A Articles Supplementary
-21-
such occurrence, as soon as practicable after becoming so
aware), provide, or cause to be provided, a written notice to the
Holders of the occurrence of such event; and
(ii) as soon as practicable following the determination of the
revised Conversion Rate in accordance with Section 13(a) or
Section 13(b), provide, or cause to be provided, a written notice to
the Holders setting forth in reasonable detail the method by which
the adjustment to the Conversion Rate was determined and setting
forth the revised Conversion Rate.
Section 14.
Reorganization Events
.
(a) In the event of:
(i) any consolidation or merger of the Corporation with or into
another Person, in each case pursuant to which the Common Stock will
be converted into cash, securities or other property of the
Corporation or another Person;
(ii) any sale, transfer, lease or conveyance to another Person
of all or substantially all of the property and assets of the
Corporation, in each case pursuant to which the Common Stock will
receive a distribution of cash, securities or other property of the
Corporation or another Person;
(iii) any reclassification of the Common Stock into securities
including securities other than the Common Stock; or
(iv) any statutory exchange of the outstanding shares of Common
Stock for securities of another Person (other than in connection with
a merger or acquisition);
(any such event specified in this Section 14(a), a
Reorganization
Event
); each share of Series A Preferred Stock outstanding
immediately prior to such Reorganization Event shall, without the
consent of Holders, become convertible into the kind of securities,
cash and other property receivable in such Reorganization Event by a
holder of the shares of Common Stock that was not the counterparty to
the Reorganization Event or an affiliate of such other party (such
securities, cash and other property, the
Exchange Property
).
(b) In the event that holders of the shares of Common Stock have the
opportunity to elect the form of consideration to be received in such transaction,
the consideration that the Holders are entitled to receive shall be deemed to be the
types and amounts of consideration received by the majority of the holders of the
shares of Common Stock that affirmatively make an election. The amount of Exchange
Property receivable upon conversion of any Series A Preferred Stock in accordance
with Section 8, Section 10, Section 11 or Section 12 shall be determined based upon
the Conversion Rate in effect on such Conversion Date.
Series A Articles Supplementary
-22-
(c) The above provisions of this Section 14 shall similarly apply to successive
Reorganization Events and the provisions of Section 13 shall apply to any shares of
capital stock of the Corporation (or any successor) received by the holders of the
Common Stock in any such Reorganization Event.
(d) The Corporation (or any successor) shall, within 20 days of the occurrence
of any Reorganization Event, provide written notice to the Holders of such
occurrence of such event and of the kind and amount of the cash, securities or other
property that constitutes the Exchange Property. Failure to deliver such notice
shall not affect the operation of this Section 14.
Section 15.
Voting Rights
. The holders of Series A Preferred Stock shall not have any
voting rights except as set forth below.
(a)
Right to Elect Two Directors upon Nonpayment Events
. (i) If and
when the dividends on the Series A Preferred Stock or on any other class or series
of the Corporations Parity Securities that has voting rights equivalent to those of
the Series A Preferred Stock, have not been authorized, declared and paid (i) in the
case of the Series A Preferred Stock and Parity Securities bearing non-cumulative
dividends, in full for at least six quarterly Dividend Periods or their equivalent
(whether or not consecutive), or (ii) in the case of Parity Securities bearing
cumulative dividends, in an aggregate amount equal to full dividends for at least
six quarterly Dividend Periods or their equivalent (whether or not consecutive), the
authorized number of directors then constituting the Board of Directors will be
automatically increased by two. Holders of Series A Preferred Stock, together with
the holders of all other affected classes and series of Parity Securities, voting as
a single class, with each series or class having a number of votes proportionate to
the aggregate liquidation preference of the outstanding shares of such class or
series, will be entitled to elect the two additional members of the Board of
Directors (the
Preferred Stock Directors
) at any annual or special meeting of
stockholders at which directors are to be elected or any special meeting of the
holders of Series A Preferred Stock and any Parity Securities for which dividends
have not been paid, called as provided below, but only if the election of any
Preferred Stock Directors would not cause the Corporation to violate the corporate
governance requirement of the NASDAQ Global Select Market (or any other exchange on
which the Corporations securities may be listed) that listed companies must have a
majority of independent directors. In addition, the Board of Directors shall at no
time have more than two Preferred Stock Directors.
(ii) At any time after this voting power has vested as described
above, the Corporations Secretary may, and upon the written request
of holders of record of at least 20% of the outstanding shares of
Series A Preferred Stock and such Parity Securities (addressed to the
Secretary at the Corporations principal office) must, call a special
meeting of the holders of Series A Preferred Stock and such Parity
Securities for the election of the Preferred Stock Directors. Notice
for a special meeting will be given in a similar manner to that
provided in the Corporations Bylaws for a special meeting of the
stockholders, which the Corporation will provide upon request, or as
required by law. If the Corporations Secretary is required to call a
meeting but does not do so within 20 days after receipt of any such
request, then any holder of shares of Series A Preferred Stock may
(at the Corporations expense) call such meeting,
Series A Articles Supplementary
-23-
upon notice as provided in this Section 15, and for that purpose
will have access to the Corporations stock books. The Preferred
Stock Directors elected at any such special meeting will hold office
until the next annual meeting of the Corporations stockholders
unless they have been previously terminated as described below. In
case any vacancy occurs among the Preferred Stock Directors, a
successor will be elected by the Board of Directors to serve until
the next annual meeting of the stockholders upon the nomination by
the remaining Preferred Stock Director or if none remains in office,
by the vote of the holders of record of the outstanding shares of
Series A Preferred Stock and all Parity Securities, voting as a
single class, with each series or class having a number of votes
proportionate to the aggregate liquidation preference of the
outstanding shares of such class or series. The Preferred Stock
Directors shall each be entitled to one vote per director on any
matter.
(iii) Whenever full dividends have been paid or set aside for
payment on the Series A Preferred Stock and any non-cumulative Parity
Securities for at least four consecutive dividend periods and all
dividends on any cumulative parity securities have been paid in full,
then the right of the holders of Series A Preferred Stock to elect
the Preferred Stock Directors will cease (but subject always to the
same provisions for the vesting of these voting rights in the case of
any similar non-payment of dividends in respect of future Dividend
Periods), the terms of office of all Preferred Stock Directors will
immediately terminate and the number of directors constituting the
Board of Directors will be automatically reduced accordingly.
(b)
Other Voting Rights
. (i) So long as any shares of Series A
Preferred Stock are outstanding, in addition to any other vote or consent of
stockholders required by the Charter, the vote or consent of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock and any class or
series of Parity Securities with similar rights then outstanding, voting together as
a single class, with each series or class having a number of votes proportionate to
the aggregate liquidation preference of the outstanding shares of such class or
series, given in person or by proxy, either in writing without a meeting or by vote
at any meeting called for the purpose, shall be necessary for effecting or
validating:
(A)
Amendment of Charter
. Any amendment of the Charter to
authorize, or increase the authorized amount of, any shares of any class or
series of stock ranking senior to the Series A Preferred Stock with respect
to payment of dividends or distribution of assets on the Corporations
liquidation; as well as any amendment of the Charter or Bylaws that would
alter or change the voting powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely;
provided
that the
amendment of the Charter so as to authorize or create, or to increase the
authorized amount of, any shares of any class or series or any securities
convertible into shares of any class or series of stock of the Corporation
ranking on a parity with or junior to the Series A Preferred Stock with
respect to dividends and in the distribution of assets on the Corporations
liquidation, dissolution or winding-up, shall not be deemed to affect
adversely the voting powers, preferences or special rights of the Series A
Preferred Stock; or
Series A Articles Supplementary
-24-
(B)
Certain Mergers and Consolidations
. Any merger or
consolidation of the Corporation with or into any entity other than a
corporation (or comparable foreign entity), or any merger or consolidation
of the Corporation with or into any corporation (or comparable foreign
entity) unless (i) the Corporation is the surviving corporation in such
merger or consolidation and the Series A Preferred Stock remains outstanding
or (ii) the Corporation is not the surviving entity in such merger or
consolidation but the Series A Preferred Stock is not changed in such merger
or consolidation into anything other than a class or series of preferred
stock of the surviving or resulting entity, or the entity controlling such
entity, having voting powers, preferences and special rights that, if such
change were effected by amendment of the Charter, would not require a vote
of the holders of the Series A Preferred Stock under Section 15(b)(i)(A).
(ii) So long as any shares of Series A Preferred Stock are
outstanding, in addition to any other vote or consent of stockholders
required by the Charter or Section 15(b)(i), the Holders shall be
entitled to vote together with the Common Stock as a single class
with respect to any merger of the Corporation into any entity that
is, or consolidation of the Corporation with another entity where the
resulting entity is, not organized and existing as a corporation
under the laws of the United States of America, any state thereof or
the District of Columbia, or any merger or consolidation of the
Corporation with or into any other entity if the Series A Preferred
Stock is converted or exchanged in such merger or consolidation into
a class or series of preferred stock of a surviving or resulting
entity, or its ultimate parent, that is not organized and existing
under the laws of the United States of America, any state thereof or
the District of Columbia. Each share of Series A Preferred Stock
shall for such purpose be entitled to a number of votes equal to the
number of shares of Common Stock into which a share of Series A
Preferred Stock would be converted if the Conversion Date were the
record date for determining the shareholders entitled to vote on such
merger or consolidation.
(c) Sections 15(a) and (b) shall not apply if, at or prior to the time when the
act with respect to which the vote would otherwise be required shall be effected,
all outstanding shares of Series A Preferred Stock shall have been converted into
shares of Common Stock or otherwise reacquired by the Corporation.
(d) Except as expressly provided in this Section 15, each holder of Series A
Preferred Stock will have one vote per share on any matter on which holders of
Series A Preferred Stock are entitled to vote, including any action by written
consent.
Section 16.
Fractional Shares
.
(a) No fractional shares of Common Stock will be issued as a result of any
conversion of shares of Series A Preferred Stock.
(b) In lieu of any fractional share of Common Stock otherwise issuable in
respect of any mandatory conversion pursuant to Section 10 or any conversion at the
option of the Holder pursuant to Section 8, Section 11 or Section 12, the Holder
shall be entitled to receive an amount in cash (computed to the nearest cent) equal
to the same
Series A Articles Supplementary
-25-
fraction of the Closing Price of the Common Stock determined as of the second
Trading Day immediately preceding the effective date of conversion.
(c) If more than one share of the Series A Preferred Stock is surrendered for
conversion at one time by or for the same Holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of the Series A Preferred Stock so surrendered.
Section 17.
Reservation of Common Stock
.
(a) The Corporation shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for issuance upon the conversion of
shares of Series A Preferred Stock as provided in these Articles Supplementary, free
from any preemptive or other similar rights, such number of shares of Common Stock
as shall from time to time be issuable upon the conversion of all the shares of
Series A Preferred Stock then outstanding, assuming that the Applicable Conversion
Price equaled the Base Price. For purposes of this Section 17(a), the number of
shares of Common Stock that shall be deliverable upon the conversion of all
outstanding shares of Series A Preferred Stock shall be computed as if at the time
of computation all such outstanding shares were held by a single Holder.
(b) All shares of Common Stock delivered upon conversion of the Series A
Preferred Stock shall be duly authorized, validly issued, fully paid and
non-assessable.
Section 18.
Transfer Agent, Registrar, Paying Agent and Conversion Agent
. The duly
appointed Transfer Agent, Registrar, paying agent and Conversion Agent for the Series A Preferred
Stock shall initially be Computershare Investor Services, Inc. The Corporation may, in its sole
discretion, remove the Transfer Agent; provided that the Corporation shall appoint a successor
transfer agent who shall accept such appointment prior to the effectiveness of such removal.
Section 19.
Miscellaneou
s. All notices referred to herein shall be in writing, and,
unless otherwise specified herein, all notices hereunder shall be deemed to have been given upon
the earlier of receipt thereof or three Business Days after the mailing thereof if sent by
registered or certified mail (unless first-class mail shall be specifically permitted for such
notice under the terms of these Articles Supplementary) with postage prepaid, addressed: (i) if to
the Corporation, to the principal executive office of the Corporation or to the Transfer Agent at
its principal office in the United States of America, or other agent of the Corporation designated
as permitted by these Articles Supplementary, or (ii) if to any Holder or holder of shares of
Common Stock, as the case may be, to such Holder at the address of such Holder as listed in the
stock record books of the Corporation (which may include the records of any transfer agent for the
Series A Preferred Stock or the Common Stock, as the case may be), or (iii) to such other address
as the Corporation or any such Holder, as the case may be, shall have designated by notice
similarly given.
Second
:
The Series A Preferred Stock has been classified and designated by the Board
of Directors and the Committee, under the authority contained in the Charter.
Third
: These Articles Supplementary have been approved by the Board and the
Committee in the manner and by the vote required by law.
Fourth
: The undersigned Officer of the Corporation acknowledges these Articles
Supplementary to be the corporate act of the Corporation and, as to all matters or facts required
to be
Series A Articles Supplementary
-26-
verified under oath, the undersigned Officer acknowledges that, to the best of his knowledge,
information and belief, these matters and facts are true in all material respects and that this
statement is made under the penalties of perjury.
[SIGNATURE PAGE FOLLOWS]
Series A Articles Supplementary
-27-
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in
its name and on its behalf by its President and attested to by its Secretary on this 21st day of
April, 2008.
|
|
|
|
|
|
|
|
|
|
|
ATTEST:
|
|
|
|
HUNTINGTON BANCSHARES
INCORPORATED
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Richard A. Cheap
|
|
|
|
By:
|
|
/s/ Thomas E. Hoaglin
|
|
(SEAL)
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Richard A. Cheap
|
|
|
|
Name:
|
|
Thomas E. Hoaglin
|
|
|
Title:
|
|
Secretary
|
|
|
|
Title:
|
|
President
|
|
|
Series A Articles Supplementary