Huntington Bancshares Inc S-4, filed Mar 14, 2022
Huntington Bancshares Inc (HBAN)
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As filed with the Securities and Exchange Commission on March 14, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Huntington Bancshares Incorporated
(Exact name of Registrant as specified in its charter)
| Maryland | 6021 | 31-0724920 | ||
| (State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (IRS Employer Identification Number) |
41 South High Street
Columbus, Ohio 43287
(614) 480-2265
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant’s Principal Executive Offices)
Jana J. Litsey
General Counsel and Senior Executive Vice President
Huntington Bancshares Incorporated
41 South High Street
Columbus, Ohio 43287
(614) 480-2265
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
with copy to:
Mark Veblen, Esq.
Kathryn Gettles-Atwa, Esq.
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
(212) 403-1000
Approximate date of commencement of the proposed sale of the securities to the public:
As soon as practicable after this registration statement becomes effective.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. ☐
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
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Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “non-accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company |
☐ | |||||
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act: ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
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The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities or accept any offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities, and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 14, 2022
HUNTINGTON BANCSHARES INCORPORATED
Offer to Exchange
$560,516,000 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036
(CUSIP No. 446150 AX2 and ISIN No. US446150AX20)
Registered Under the Securities Act of 1933, as amended
for Any and All Outstanding
$560,516,000 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036
(CUSIP Nos. 446150 AW4 and U44750 AA2 and
ISIN Nos. US446150AW47, USU44750AA27)
Principal Terms of the Exchange Offer
This is an offer (the “exchange offer”) by Huntington Bancshares Incorporated, a Maryland corporation (“Huntington,” the “Company,” “we,” “us,” “our,” the “Issuer” or the “Registrant”), to exchange all of the Company’s outstanding unregistered 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036 (CUSIP No. 446150 AW4 and U44750 AA2 and ISIN No. US446150AW47 and USU44750AA27) (the “Restricted Notes”) for an equal principal amount of the Company’s registered 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036 (CUSIP No. 446150 AX2 and ISIN No. US446150AX20) (the “Registered Notes”), the offer of which has been registered under the Securities Act of 1933, as amended (the “Securities Act”).
The Company issued the Restricted Notes on August 16, 2021 in a private offer for cash and on September 8, 2021 in a private offer pursuant to which additional such notes were exchanged for the Company’s 4.350% Subordinated Notes due 2023 and The Huntington National Bank’s (the “Bank”) 6.250% Subordinated Notes due 2022, 4.600% Subordinated Notes due 2025 and 4.270% Subordinated Notes due 2026.
The exchange offer expires at 5:00 p.m., New York City time, on , 2022, unless the Company extends the offer. You may withdraw tenders of Restricted Notes at any time prior to the expiration of the exchange offer. The exchange offer is not subject to any condition other than that it will not violate applicable law or interpretations of the staff of the Securities and Exchange Commission (the “SEC”) and that no proceedings with respect to the exchange offer have been instituted or threatened in any court or by any governmental agency. The exchange offer is not conditioned upon any minimum aggregate principal amount of Restricted Notes being tendered for exchange.
Principal Terms of the Registered Notes
The terms of the Registered Notes to be issued in the exchange offer are substantially identical in all material respects to the terms of the Restricted Notes, except that the Registered Notes will not be subject to restrictions on transfer. No public market currently exists for the Restricted Notes. The Company does not intend to list the Registered Notes on any securities exchange or to apply for quotation in any automated dealer quotation system, and, therefore, no active public market is anticipated.
The Registered Notes, like the Restricted Notes, will be unsecured, unsubordinated obligations of the Company and unsecured and subordinated in right of payment to the payment of its existing and future Senior Debt (as defined in the Indenture (as defined herein)) governing the Restricted Notes and which includes, among other things, our debt to general creditors) and will rank equal in right of payment to all of the Company’s existing and future subordinated indebtedness that is not specifically stated to be junior to the Registered Notes. See “Description of the Registered Notes—Subordination.” The Registered Notes are obligations of Huntington Bancshares Incorporated, a Maryland corporation, only and are not guaranteed by any of its subsidiaries. As a result, the Registered Notes will be structurally subordinated to the liabilities and other obligations, including deposits, of our subsidiaries, including the Bank. The Registered Notes will not be entitled to any sinking fund.
You should carefully consider the risk factors beginning on page 10 of this prospectus before participating in the exchange offer.
Each broker-dealer that receives Registered Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such Registered Notes. The letter of transmittal states that, by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Registered Notes received in exchange for Restricted Notes that were acquired by such broker-dealer as a result of market-making or other trading activities. The Company has agreed that, for a period of up to 180 days after the expiration date of the applicable exchange offer, if requested by one or more such broker-dealers, the Company will amend or supplement this prospectus in order to expedite or facilitate the disposition of any Registered Notes by any such broker-dealers. See “Plan of Distribution.”
The Registered Notes are not savings accounts, deposits or other obligations of any of our bank or non-bank subsidiaries and are not insured by the Federal Deposit Insurance Corporation (“FDIC”), or any other governmental agency or instrumentality. None of the SEC, any state securities commission, the FDIC, the Board of Governors of the Federal Reserve System (the “Federal Reserve”) nor any other regulatory body has approved or disapproved of these securities or determined if this prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2022.
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The Company has not authorized anyone to provide you with information that is different from the information included or incorporated by reference in this document. The Company cannot take responsibility for, nor provide assurances as to the reliability of, any different or additional information that others may give you. This document may only be used where it is legal to sell these securities.
No person is authorized in connection with this exchange offer to give any information or to make any representation not contained in this prospectus, and, if given or made, such other information or representation must not be relied upon as having been authorized by the Company. You should assume that the information contained in this prospectus is accurate only as of its date.
This prospectus does not constitute an offer to sell or buy any Registered Notes in any jurisdiction where it is unlawful to do so. You should base your decision to invest in the Registered Notes and participate in the exchange offer solely on information contained or incorporated by reference in this prospectus.
No person should construe anything in this prospectus as legal, business or tax advice. Each person should consult its own advisors as needed to make its investment decision and to determine whether it is legally permitted to participate in the exchange offer under applicable legal investment or similar laws or regulations.
We have filed with the SEC a registration statement on Form S-4 (File No. 333- with respect to the exchange offer and the Registered Notes. This prospectus, which forms part of that registration statement, does not contain all the information included in the registration statement, including its exhibits and schedules. For further information about the Company, the exchange offer and the Registered Notes described in this prospectus, you should refer to the registration statement and its exhibits and schedules and the documents incorporated by reference herein. Statements the Company makes in this prospectus or in the documents incorporated by reference herein about certain contracts or other documents are not necessarily complete. When the Company makes such statements, the Company refers you to the copies of the contracts or documents that are filed, because those statements are qualified in all respects by reference to those exhibits. The registration
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statement incorporates important business and financial information about the Company that is not included or delivered with this document. The registration statement, including its exhibits and schedules, is available at the SEC’s website at www.sec.gov. You may also obtain this information without charge by writing to Huntington Bancshares Incorporated, 41 South High Street, Columbus, Ohio 43287, Attention: Huntington Investor Relations or calling telephone number (614) 480-5676.
In order to ensure timely delivery, you must request the information no later than , 2022, which is five business days before the expiration of the exchange offer.
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CAUTIONARY NOTE CONCERNING FACTORS THAT MAY AFFECT FUTURE RESULTS
This prospectus and the documents incorporated herein and therein by reference contain certain forward-looking statements, including, but not limited to, certain plans, expectations, goals, projections, and statements, which are not historical facts and are subject to numerous assumptions, risks, and uncertainties. Statements that do not describe historical or current facts, including statements about beliefs and expectations, are forward-looking statements. Forward-looking statements may be identified by words such as “expect,” “anticipate,” “believe,” “intend,” “estimate,” “plan,” “target,” “goal,” or similar expressions, or future or conditional verbs such as “will,” “may,” “might,” “should,” “would,” “could,” or similar variations.
While there is no assurance that any list of risks and uncertainties or risk factors is complete, below are certain factors which could cause actual results to differ materially from those contained or implied in the forward-looking statements: changes in general economic, political, or industry conditions; the magnitude and duration of the COVID-19 pandemic and related variants and mutations and their impact on the global economy and financial market conditions and our business, results of operations, and financial condition; uncertainty in U.S. fiscal and monetary policy, including the interest rate policies of the Federal Reserve; volatility and disruptions in global capital and credit markets; movements in interest rates; cessation of LIBOR; competitive pressures on product pricing and services; success, impact, and timing of our business strategies, including market acceptance of any new products or services including those implementing our “Fair Play” banking philosophy; the nature, extent, timing, and results of governmental actions, examinations, reviews, reforms, regulations, and interpretations, including those related to the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd Frank Act”) and the Basel III regulatory capital reforms, as well as those involving the Office of the Comptroller of the Currency, Federal Reserve, FDIC, and Consumer Financial Protection Bureau; the possibility that the anticipated benefits of the transaction with TCF Financial Corporation are not realized when expected or at all, including as a result of the impact of, or problems arising from, the integration of the two companies or as a result of the strength of the economy and competitive factors in the areas where Huntington does business; and other factors that may affect our future results. Additional factors that could cause results to differ materially from those described above can be found in our Annual Report on Form 10-K for the year ended December 31, 2021 and the documents subsequently filed by us with the SEC. We assume no obligation to update any forward-looking statements. The foregoing list of factors is not exhaustive. For discussion of these and other factors that may cause actual results to differ from expectations, look under the captions “Forward-Looking Statements” and “Risk Factors” of our Annual Report on Form 10-K for the year ended December 31, 2021, as filed with the SEC, and in this prospectus.
All forward-looking statements speak only as of the date they are made and are based on information available at that time. We assume no obligation to update forward-looking statements to reflect circumstances or events that occur after the date the forward-looking statements were made or to reflect the occurrence of unanticipated events, except as required by federal securities laws. As forward-looking statements involve significant risks and uncertainties, caution should be exercised against placing undue reliance on such statements.
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The following is a summary of some of the information contained or incorporated by reference in this prospectus. This summary does not contain all the details concerning the exchange offer or the Registered Notes, including information that may be important to you. To better understand our business and financial position, you should carefully review this entire document and the documents incorporated by reference herein, including the information under “Risk Factors” and “Cautionary Note Concerning Factors that May Affect Future Results.”
Huntington Bancshares Incorporated
We are a multi-state diversified regional bank holding company organized under Maryland law in 1966 and headquartered in Columbus, Ohio. Through the Bank, we have over 150 years of servicing the financial needs of our customers. Through our subsidiaries, we provide full-service commercial and consumer banking services, mortgage banking services, automobile financing, recreational vehicle and marine financing, equipment financing, inventory finance, investment management, trust services, brokerage services, insurance products and services, and other financial products and services. At December 31, 2021, our 1,092 full-service branches and private client group offices are primarily located in Ohio, Colorado, Illinois, Indiana, Kentucky, Michigan, Minnesota, Pennsylvania, West Virginia and Wisconsin. Select financial services and other activities are also conducted in various other states. International banking services are available through the headquarters office in Columbus, Ohio. Our foreign banking activities, in total or with any individual country, are not significant.
On June 9, 2021, Huntington closed the acquisition of TCF Financial Corporation in an all-stock transaction valued at $7.2 billion. TCF was a financial holding company headquartered in Detroit, Michigan with operations across the Midwest. Historical periods prior to June 9, 2021 reflect results of legacy Huntington operations. Subsequent to closing, results reflect all post-acquisition activity.
As of December 31, 2021, we had, on a consolidated basis, total assets of approximately $174 billion, total deposits of approximately $143 billion and total shareholders’ equity of approximately $19 billion.
Our principal executive offices are located at 41 South High Street, Columbus, Ohio 43287, and our telephone number is (614) 480-2265.
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| Background |
Huntington issued the Restricted Notes on August 16, 2021 in a private offer for cash and on September 8, 2021 in a private offer pursuant to which additional such notes were exchanged for its 4.350% Subordinated Notes due 2023 and the Bank’s 6.250% Subordinated Notes due 2022, 4.600% Subordinated Notes due 2025 and 4.270% Subordinated Notes due 2026. We are offering to issue the Registered Notes in exchange for the Restricted Notes to satisfy our obligations under the Registration Rights Agreement, dated as of August 16, 2021 (the “Registration Rights Agreement”), that we entered into in connection with those private offerings. |
| The exchange offer is intended to satisfy the rights granted to holders of the Restricted Notes in the Registration Rights Agreement. After the exchange offer is complete, holders of Restricted Notes will no longer be entitled to any exchange or registration rights with respect to the Restricted Notes. |
| Exchange Offer |
We are offering to exchange the Restricted Notes for a like principal amount of Registered Notes, the offer of which has been registered under the Securities Act. |
| The Registered Notes will be substantially identical in all material respects to the Restricted Notes, except that the Registered Notes will not be subject to restrictions on transfer. |
| The Restricted Notes may be exchanged only in minimum denominations of $2,000 and larger integral multiples of $1,000. You should read the discussion under the headings “Description of the Registered Notes” for further information regarding the Registered Notes. You should also read the discussion under the heading “Terms of the Exchange Offer” for further information regarding the exchange offer and resale of the Registered Notes. |
| Resales |
Based on interpretations by the staff of the SEC set forth in Exxon Capital Holdings Corporation, Morgan Stanley & Co. Incorporated and Shearman & Sterling, the Company believes that the Registered Notes may be offered for resale, resold and otherwise transferred by you without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that you: |
| • | are acquiring the Registered Notes in the ordinary course of business; |
| • | have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the Registered Notes; and |
| • | you are not an “affiliate” of the Company, as defined in Rule 405 of the Securities Act. |
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| By agreeing to the terms stated in the letter of transmittal and exchanging your Restricted Notes for Registered Notes, as described below, you will be making representations to this effect. |
| Each participating broker-dealer that receives Registered Notes for its own account pursuant to the exchange offer in exchange for the Restricted Notes that were acquired as a result of market-making or other trading activity must acknowledge that it will deliver a prospectus in connection with any resale of the Registered Notes. See “Plan of Distribution.” |
| Any holder of Restricted Notes who: |
| • | is an affiliate of the Company, as defined in Rule 405 of the Securities Act; |
| • | does not acquire the Registered Notes in the ordinary course of its business; or |
| • | cannot rely on the position of the staff of the SEC expressed in Exxon Capital Holdings Corporation, Morgan Stanley & Co. Incorporated or similar no-action letters |
| must, in the absence of an exemption, comply with registration and prospectus delivery requirements of the Securities Act in connection with the resale of the Registered Notes. The Company will not assume, nor will the Company indemnify you against, any liability you may incur under the Securities Act or state or local securities laws if you transfer any Registered Notes issued in the exchange offer absent compliance with the applicable registration and prospectus delivery requirements or an applicable exemption. |
| Expiration Time |
The exchange offer will expire at 5:00 p.m., New York City time, on , 2022, or such later date and time to which the Company extends it. The Company does not currently intend to extend the expiration time. |
| Conditions to the Exchange Offer |
The exchange offer is subject to the following conditions, which the Company may waive: |
| • | the exchange offer does not violate applicable law or applicable interpretations of the staff of the SEC; and |
| • | there is no action or proceeding instituted or threatened in any court or by any governmental agency with respect to this exchange offer, which, in the Company’s judgment, could reasonably be expected to impair the Company’s ability to proceed with the exchange offer. |
| The exchange offer is not conditioned upon any minimum aggregate principal amount of the Restricted Notes being tendered for exchange. |
| See “Terms of the Exchange Offer—Conditions to the Exchange Offer.” |
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| Procedures for Tendering the Restricted Notes |
If you wish to accept and participate in the exchange offer, you must follow the instructions contained in this prospectus and the letter of transmittal. If you wish to participate in the exchange offer, you must also comply with the Automated Tender Offer Program (“ATOP”) procedures of The Depository Trust Company (“DTC”) described herein. |
| By agreeing to be bound by the letter of transmittal, pursuant to the agent’s message, you represent to the Company that, among other things: |
| • | any Registered Notes that you receive will be acquired in the ordinary course of business; |
| • | you have not engaged in, do not intend to engage in, and have no arrangement or understanding with any person to participate in, a distribution of the Registered Notes; |
| • | if you are a broker-dealer that will receive Registered Notes for your own account in exchange for Restricted Notes that were acquired as a result of market-making activities, you will deliver a prospectus, as required by law, in connection with any resale of the Registered Notes; and |
| • | you are not an “affiliate” of the Company, as defined in Rule 405 under the Securities Act. |
| Special Procedures for Beneficial Owners |
If you are a beneficial owner whose Restricted Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender such Restricted Notes in the exchange offer, you should promptly contact the person in whose name the Restricted Notes are registered and instruct that person to tender on your behalf. If you wish to tender in the exchange offer on your own behalf, prior to delivering your Restricted Notes, you must either make appropriate arrangements to register ownership of the Restricted Notes in your name or obtain a properly completed bond power from the person in whose name the Restricted Notes are registered. The transfer of registered ownership may take considerable time and may not be able to be completed prior to the expiration time. |
| If you are a beneficial owner that holds Restricted Notes through Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”), or Clearstream Banking, société anonyme (“Clearstream”), and wish to tender your Restricted Notes, contact Euroclear or Clearstream directly to ascertain the procedures for tendering Restricted Notes and comply with such procedures. |
| Withdrawal of Tenders |
Tenders of the Restricted Notes pursuant to the exchange offer may be withdrawn at any time prior to the expiration time. To withdraw, you must send a written notice of withdrawal to the exchange agent at |
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| its address indicated under “Terms of the Exchange Offer—Exchange Agent” before the expiration time of the exchange offer. |
| Acceptance of the Restricted Notes and Delivery of the Registered Notes |
If all of the conditions to the completion of this exchange offer are satisfied, the Company will accept any and all Restricted Notes that are properly tendered in this exchange offer and not properly withdrawn before the expiration time. The Company will return any Restricted Notes that the Company does not accept for exchange to its registered holder at the Company’s expense promptly after the expiration time. The Company will deliver the Registered Notes to the registered holders of Restricted Notes accepted for exchange promptly after the expiration time and acceptance of such Restricted Notes. See “Terms of the Exchange Offer—Acceptance of Restricted Notes for Exchange; Delivery of Registered Notes.” |
| Effect on Holders of the Restricted Notes |
As a result of making, and upon acceptance for exchange of all validly tendered Restricted Notes pursuant to the terms of, the exchange offer, the Company will have fulfilled a covenant contained in the Registration Rights Agreement. If a holder of Restricted Notes does not tender its Restricted Notes in the exchange offer, such holder will continue to hold their Restricted Notes and such holder will be entitled to all the rights and limitations applicable to the Restricted Notes in the Indenture (as defined herein), except for any rights under the Registration Rights Agreement that by their terms terminate upon the consummation of the exchange offer. See “Terms of the Exchange Offer—Purpose and Effect of the Exchange Offer.” |
| Consequences of Failure to Exchange |
All untendered Restricted Notes will continue to be subject to the restrictions on transfer provided for in the Restricted Notes and in the Indenture. In general, the Restricted Notes may not be offered or sold unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state or local securities laws. The trading market for your Restricted Notes will likely become more limited to the extent that other holders of Restricted Notes participate in the exchange offer. Following consummation of the exchange offer, the Company will not be required to register under the Securities Act any Restricted Notes that remain outstanding, except in the limited circumstances in which it is obligated to file a shelf registration statement for certain holders of Restricted Notes not eligible to participate in the exchange offer pursuant to the Registration Rights Agreement. If your Restricted Notes are not tendered and accepted in the exchange offer, it may become more difficult to sell or transfer the Restricted Notes. See “Terms of the Exchange Offer—Additional Obligations” and “Risk Factors.” |
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| Material U.S. Federal Income Tax Considerations |
The exchange of Restricted Notes for Registered Notes in the exchange offer will not constitute a taxable exchange for U.S. federal income tax purposes. See “Material U.S. Federal Income Tax Considerations.” |
| Exchange Agent |
The Bank of New York Mellon Trust Company, N.A. is the exchange agent for the exchange offer. The address and telephone number of the exchange agent are set forth under the heading “Terms of the Exchange Offer—Exchange Agent.” |
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The terms of the Registered Notes are summarized below. This summary is not a complete description of the Registered Notes. For a more detailed description of the Registered Notes, see the discussion under the heading “Description of the Registered Notes.” In this section, the terms the “Company,” the “Issuer,” “we” and “our” refer only to Huntington Bancshares Incorporated and not any of its subsidiaries, including the Bank. Other than the restrictions on transfer, the Registered Notes will have the same terms as the Restricted Notes.
| Issuer |
Huntington Bancshares Incorporated, a Maryland corporation |
| Title |
2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036 |
| Reset Date |
August 15, 2031 |
| Maturity Date |
August 15, 2036 |
| Interest Rates |
The Registered Notes will accrue interest to, but excluding, the Reset Date or the date of earlier redemption, at a fixed rate of 2.487% per annum, and from and including the Reset Date to, but excluding, the Maturity Date at a rate per annum which will be the Five-year U.S. Treasury Rate (as defined herein) as of the Reset Determination Date (as defined herein) plus 1.170% per annum. |
| Interest Payment Dates |
Each February 15 and August 15. |
| Holders of the Restricted Notes that are accepted for exchange will be deemed to have waived the right to receive payment of accrued interest on those Restricted Notes from the last interest payment date on which interest was paid on such Restricted Notes to the date of issuance of the Registered Notes. Interest on the Restricted Notes accepted for exchange will cease to accrue upon issuance of the Registered Notes. Interest is payable on the Registered Notes beginning with the first interest payment date following the consummation of the exchange offer. |
| Ranking; Subordination; No Guarantees |
The Registered Notes will be unsecured and subordinated in right of payment to the payment of our existing and future Senior Debt (as defined in the Indenture and described below under “Description of the Registered Notes”), will rank equal in right of payment to all of our existing and future indebtedness ranking on a parity with the Registered Notes and will be senior to any liabilities and other obligations of ours that ranks junior and not equally with or prior to the Registered Notes. The Registered Notes are not guaranteed by any of our subsidiaries. As a result, the Registered Notes will be structurally subordinated to the liabilities of our subsidiaries, including the Bank. The Registered Notes will not be entitled to any sinking fund. |
| The Indenture governing the Registered Notes does not contain any limitation on the amount of debt or other obligations ranking senior to or pari passu with the indebtedness evidenced by the Registered Notes that we may incur hereafter. |
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| Redemption/Repayment |
We may at our option redeem the Registered Notes, in whole but not in part, on and only on the Reset Date, subject to obtaining the prior approval of the Federal Reserve to the extent such approval is then required under the rules of the Federal Reserve, at a redemption price equal to 100% of the principal amount of the Registered Notes being redeemed, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date. See “Description of the Registered Notes—Optional Redemption.” |
| We may also redeem the Registered Notes at any time prior to the Maturity Date, in whole, but not in part, subject to obtaining the prior approval of the Federal Reserve, to the extent such approval is then required under the rules of the Federal Reserve, within 90 days after the occurrence of a “Tax Event,” a “Tier 2 Capital Event” (each as defined in “Description of the Registered Notes—Optional Redemption”) or if we are required to register as an investment company pursuant to the Investment Company Act of 1940 (the “1940 Act”), in each case, at a redemption price equal to 100% of the principal amount of the Registered Notes, plus any accrued and unpaid interest to, but excluding, the redemption date. |
| Calculation Agent |
We will appoint a calculation agent (which in no event shall be the Trustee or any paying agent unless otherwise agreed to in writing) for the Registered Notes prior to the Reset Determination Date. In addition, we or our affiliate may assume the duties of the calculation agent. |
| Covenants |
The terms of the Registered Notes will contain only very limited protections for holders of Registered Notes. In particular, the Registered Notes will not place any restrictions on our or our subsidiaries’ ability to issue debt securities or otherwise incur additional indebtedness or other obligations ranking senior to the Registered Notes. The Indenture also allows us to consolidate with, or sell, lease or otherwise transfer all or substantially all of our assets to, or merge with or into, any other corporation, trust or other entity if certain conditions are met. See “Description of the Registered Notes—Merger, Consolidation or Sale of Assets.” |
| Events of Default; Acceleration |
Certain events of bankruptcy, insolvency or receivership relating to us will be events of default with respect to the Registered Notes. |
| If an event of default has occurred, the principal of and accrued but unpaid interest on the Registered Notes will automatically, and without any declaration or other action on the part of the Trustee (as defined below) or any holder of Registered Notes, become immediately due and payable. |
| A default in the payment of principal of or interest on the Registered Notes or in our performance of any other obligation under the Registered Notes or the Indenture will not constitute an event of default under the Indenture and will not give rise to any right of acceleration. |
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| Use of Proceeds |
The Company will not receive any cash proceeds from the issuance of the Registered Notes. In consideration for issuing the Registered Notes as contemplated in this prospectus, the Company will receive in exchange Restricted Notes in like principal amount, which will be cancelled and, as such, issuing the Registered Notes will not result in any increase in the Company’s indebtedness. |
| Trustee |
The Bank of New York Mellon Trust Company, N.A. |
| Form and Denominations |
The Registered Notes will be book-entry only and registered in the name of a nominee of DTC. Investors may elect to hold interests in the Registered Notes through Clearstream or Euroclear, if they are participants in these systems, or indirectly through organizations that are participants in these systems. The Registered Notes will be issued in minimum denominations of $2,000 and integral multiples of $1,000. |
| Risk Factors |
For a discussion of factors you should carefully consider before deciding to purchase the Registered Notes, see “Cautionary Note Concerning Factors That May Affect Future Results” and “Risk Factors” beginning on pages iii and 10, respectively, of this prospectus and the “Risk Factors” discussed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, which is incorporated by reference in this prospectus. |
| No Public Market |
The Registered Notes are new securities, and there is currently no established trading market for the Registered Notes. See “Risk Factors.” An active trading market may not develop for the Registered Notes, and we do not intend to apply to list the Registered Notes on any securities exchange or for quotation in any automated dealer quotation system. |
| Governing Law |
The Registered Notes will be, and the Indenture is, governed by and construed in accordance with the laws of the State of New York. |
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Investing in the Registered Notes involves risks, which risks are substantially equivalent to those applicable to the Restricted Notes exchanged therefor except that the Registered Notes will be registered. Prospective investors should consider carefully all of the information set forth in this prospectus and the documents incorporated by reference herein. In particular, you should carefully consider the risk factors discussed below and under “Risk Factors” included in our Annual Report on Form 10-K for the year ended December 30, 2021. See “Incorporation of Certain Information by Reference” and “Cautionary Note Concerning Factors That May Affect Future Results.”
Risks Related to the Business
You should read and consider risk factors specific to Huntington’s businesses. These risks are described in Part I, Item 1A of Huntington’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021. For the location of information incorporated by reference in this prospectus, see the section entitled “Where You Can Find More Information.”
Related to the Registered Notes
Our obligations under the Registered Notes will be unsecured and subordinated.
Our obligations under the Registered Notes will be unsecured and subordinated in right of payment to all of our existing and future Senior Debt, which includes, among other things, our debt to general creditors. As of December 31, 2021, we had approximately $2.1 billion of Senior Debt, approximately $781 million of indebtedness ranking on a parity with the Registered Notes and approximately $247 million of indebtedness ranking junior to the Registered Notes, including our junior subordinated debentures or indentures, as applicable, issued to our statutory trusts. As of that date, we had a total consolidated indebtedness of $7.1 billion, including $3.2 billion of indebtedness of our subsidiaries. We may incur substantial other indebtedness, including additional Senior Debt and indebtedness ranking on a parity with the Registered Notes, in the future. The Indenture governing the Registered Notes does not contain any limitation on the amount of debt or other obligations ranking senior to or pari passu with the indebtedness evidenced by the Registered Notes that we may incur hereafter.
The Registered Notes are our obligations and not obligations of or guaranteed by our subsidiaries and will be structurally subordinated to the claims of our subsidiaries’ creditors.
The Registered Notes are exclusively our obligations and not those of our subsidiaries. We are a holding company that conducts substantially all of our operations through our bank and non-bank subsidiaries. As a result, our ability to make payments on the Registered Notes will depend primarily upon the receipt of dividends and other distributions from our subsidiaries. If we do not receive sufficient cash dividends and other distributions from our subsidiaries, it is unlikely that we will have sufficient funds to make payments on the Registered Notes.
Our subsidiaries are separate and distinct legal entities. Our subsidiaries have no obligation to pay any amounts due on the Registered Notes or to provide us with funds to pay our obligations on the Registered Notes, whether by dividends, distributions, loans or other payments. In addition, any dividend payments, distributions, loans or advances to us by our subsidiaries in the future will require the generation of future earnings by our subsidiaries and may require regulatory approval. There are statutory and regulatory limitations on the payment of dividends by the Bank to us, as well as by us to our stockholders. The Bank may not, without prior regulatory approval, pay a dividend in an amount greater than its undivided profits. If the Bank is unable to make dividend payments to us and sufficient capital is not otherwise available, we may not be able to make principal and interest payments on our debt, including the Registered Notes.
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In addition, our right to participate in any distribution of assets of any of our subsidiaries upon the subsidiary’s liquidation or otherwise will generally be subject to the prior claims of creditors of that subsidiary. Your ability as a holder of the Registered Notes to benefit indirectly from that distribution also will be subject to these prior claims. The Registered Notes are not guaranteed by any of our subsidiaries. As a result, the Registered Notes will be structurally subordinated to all existing and future liabilities and obligations of our subsidiaries, including claims or depositors and general or subordinated creditors of the Bank, which means that our subsidiaries’ creditors will be paid from our subsidiaries’ assets before holders of the Restricted Notes would have any claims to those assets. Therefore, you should look only to our assets for payments on the Registered Notes. At December 31, 2021, the aggregate amount of all debt and other liabilities of the Bank, including deposits, was approximately $154 billion. The Bank and our other subsidiaries may incur additional debt and liabilities in the future, all of which would rank structurally senior to the Registered Notes.
The Registered Notes will be effectively junior to all of our and our subsidiaries’ secured indebtedness.
The Registered Notes will be effectively subordinated to any of the existing and future secured debt we or our subsidiaries may incur, to the extent of the value of the assets securing such debt. In the event that we are declared bankrupt, become insolvent or are liquidated or reorganized, any debt that ranks ahead of the Registered Notes will be entitled to be paid in full from our assets before any payment may be made with respect to the Registered Notes. Holders of the Registered Notes will participate ratably with all holders of our unsecured indebtedness that is deemed to be of the same ranking as the Registered Notes based upon the respective amounts owed to each holder or creditor, in our remaining assets. In any of the foregoing events, we may not have sufficient assets to pay amounts due on the Registered Notes. As a result, if holders of the Registered Notes receive any payments, they may receive less, ratably, than holders of secured indebtedness.
There are limited covenants in the Indenture governing the Registered Notes.
Neither we nor any of our subsidiaries is restricted from incurring additional debt or other liabilities, including additional Senior Debt, under the Indenture governing the Registered Notes. If we incur additional debt or liabilities, our ability to pay our obligations on the Registered Notes could be adversely affected. We expect to incur, from time to time, additional debt and other liabilities. In addition, we are not restricted under the Indenture from granting security interests over our assets or from paying dividends or issuing or repurchasing our securities.
In addition, there are no financial covenants in the Indenture. You are not protected under the Indenture in the event of a highly leveraged transaction, reorganization, a default under our existing indebtedness, restructuring, merger or similar transaction that may adversely affect you, except to the extent described under “Description of the Registered Notes—Merger, Consolidation or Sale of Assets.”
Holders of the Registered Notes will have limited rights if there is an event of default.
Payment of principal on the Registered Notes may be accelerated only in the case of certain events of bankruptcy, insolvency or receivership involving Huntington. There is no right of acceleration in the case of default in the payment of principal of or interest on the Registered Notes or in the performance of any of our other obligations under the Registered Notes or the Indenture governing the Registered Notes.
The interest rate on the Registered Notes will reset on the Reset Date and may result in an interest rate that is less than the initial fixed annual rate of 2.487% in effect until the Reset Date.
The interest rate on the Registered Notes on and after the Reset Date will equal the Five-year U.S. Treasury Rate as of the Reset Determination Date, plus 1.170% per annum. Therefore, the interest rate on the Registered Notes on and after the Reset Date could be more or less than the initial fixed rate of 2.487%. We have no control over the factors that may affect U.S. Treasury Rates, including geopolitical conditions and economic, financial, political, regulatory, judicial or other events that may impact U.S. Treasury Rates.
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The historical Five-year U.S. Treasury Rates are not an indication of future Five-year U.S. Treasury Rates.
In the past, U.S. Treasury Rates have experienced significant fluctuations. You should note that historical levels, fluctuations and trends of U.S. Treasury Rates are not necessarily indicative of future levels. Any historical upward or downward trend in U.S. Treasury Rates is not an indication that U.S. Treasury Rates are more or less likely to increase or decrease at any time, and you should not take the historical U.S. Treasury Rates as an indication of future rates.
The Registered Notes are not insured or guaranteed by the FDIC.
The Registered Notes are not savings accounts, deposits or other obligations of a bank and are not insured by the FDIC or any other governmental agency or instrumentality.
Risks Related to the Exchange Offer
You may have difficulty selling the Restricted Notes that you do not exchange.
If you do not exchange your Restricted Notes for Registered Notes in the exchange offer, you will continue to be subject to the restrictions on transfer of your Restricted Notes described in the legend on your Restricted Notes and we will not be required to offer another opportunity for you to exchange your Restricted Notes for Registered Notes, except in limited circumstances. The restrictions on transfer of your Restricted Notes arise because we issued the Restricted Notes under exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, you may offer or sell the Restricted Notes only if they are registered under the Securities Act and applicable state securities laws or are offered and sold under an exemption from these requirements. We do not intend to register the Restricted Notes under the Securities Act. We may in the future seek to acquire untendered Restricted Notes in the open market or privately negotiated transactions, through subsequent exchange offer or otherwise. We have no present plans to acquire any Restricted Notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered Restricted Notes. To the extent Restricted Notes are tendered and accepted in the exchange offer, the trading market, if any, for the remaining Restricted Notes would likely be adversely affected. See “Terms of the Exchange Offer—Consequences of Failure to Exchange” for a discussion of the possible consequences of failing to exchange your Restricted Notes.
Because we anticipate that most holders of the Restricted Notes will elect to exchange their Restricted Notes, we expect that the liquidity of the market for any Restricted Notes remaining after the completion of the exchange offer will be substantially limited. Any Restricted Notes tendered and exchanged in the exchange offer will reduce the aggregate principal amount of the Restricted Notes outstanding. Following the exchange offer, if you do not tender your Restricted Notes you generally will not have any further registration rights, and your Restricted Notes will continue to be subject to certain transfer restrictions. Accordingly, the liquidity of the market for the Restricted Notes could be adversely affected.
You may find it difficult to sell your Registered Notes because there is no existing trading market for the Registered Notes.
You may find it difficult to sell your Registered Notes because an active trading market for the Registered Notes may not develop. There is no existing trading market for the Registered Notes. We do not intend to apply for listing or quotation of the Registered Notes on any exchange, so we do not know the extent to which investor interest will lead to the development of a trading market or how liquid that market might be. As a result, the market price of the Registered Notes, as well as your ability to sell the Registered Notes, could be adversely affected.
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Broker-dealers or noteholders may become subject to the registration and prospectus delivery requirements of the Securities Act.
Any broker-dealer that exchanges its Restricted Notes in the exchange offer for the purpose of participating in a distribution of the Registered Notes, or resells Registered Notes that were received by it for its own account in the exchange offer, may be deemed to have received restricted securities and may be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction by that broker-dealer. Any profit on the resale of the Registered Notes and any commission or concessions received by a broker-dealer may be deemed to be underwriting compensation under the Securities Act.
In addition to broker-dealers, any noteholder that exchanges its Restricted Notes in the exchange offer for the purpose of participating in a distribution of the Registered Notes may be deemed to have received restricted securities and may be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction by that noteholder.
You must comply with the exchange offer procedures in order to receive freely tradable Registered Notes.
Delivery of the Registered Notes in exchange for the Restricted Notes tendered and accepted for exchange pursuant to the exchange offer will be made only if such tenders comply with the exchange offer procedures described herein, including the timely receipt by the exchange agent of book-entry transfer of the Restricted Notes into the exchange agent’s account at DTC, as depositary, including an agent’s message. We are not required to notify you of defects or irregularities in tenders of Restricted Notes for exchange. The method of delivery of Restricted Notes and the letter of transmittal and all other required documents to the exchange agent is at the election and risk of the holders of the Restricted Notes.
Consummation of the exchange offer may not occur.
The exchange offer is subject to the satisfaction of certain conditions. See “Terms of the Exchange Offer—Conditions to the Exchange Offer.” Even if the exchange offer is completed, it may not be completed on the timing described in this prospectus. Accordingly, holders participating in the exchange offer may have to wait longer than expected to receive their Registered Notes, during which time such holders will not be able to effect transfers of their Restricted Notes tendered in the exchange offer. Until we announce whether we have accepted valid tenders of Restricted Notes for exchange pursuant to the exchange offer, no assurance can be given that the exchange offer will be completed. In addition, subject to applicable law and as provided in this prospectus, we may, in our sole discretion, extend, re-open, amend, waive any condition of or terminate the exchange offer at any time before our announcement of whether we will accept valid tenders of Restricted Notes for exchange pursuant to the exchange offer, which we expect to make as soon as reasonably practicable after the expiration date.
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We will not receive any cash proceeds from the issuance of the Registered Notes. In consideration for issuing the Registered Notes as contemplated in this prospectus, the Company will receive in exchange Restricted Notes in like principal amount, which will be cancelled, and, as such, issuing the Registered Notes will not result in any increase in the Company’s indebtedness.
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Purpose and Effect of the Exchange Offer
We entered into a Registration Rights Agreement with respect to the Restricted Notes on August 16, 2021. Pursuant to the Registration Rights Agreement, we agreed, among other things, to use commercially reasonable efforts to (1) file a registration statement on an appropriate registration form with respect to a registered offer to exchange the Restricted Notes for Registered Notes, with terms substantially identical in all material respects to the Restricted Notes (except that the Registered Notes will not contain terms with respect to transfer restrictions) and (2) cause the registration statement to be declared effective under the Securities Act on or before May 13, 2022. In furtherance of the foregoing, we have filed with the SEC a registration statement on Form S-4 (File No. 333- ) with respect to the exchange offer and the Registered Notes. We will use commercially reasonable efforts to complete the exchange offer not later than August 16, 2022. If applicable law or applicable interpretations of the staff of the SEC do not permit the Company to effect the exchange offer the Company will be required to use commercially reasonable efforts to file a shelf registration statement under the Securities Act which would cover resales of the Restricted Notes.
After the SEC declares this exchange offer registration statement effective, we will offer the Registered Notes in return for the Restricted Notes. The exchange offer will remain open for at least 20 business days (or longer if required by applicable law) after the date we electronically deliver notice of the exchange offer to the holders of the applicable Restricted Notes. For each Restricted Note surrendered to us pursuant to the exchange offer, the holder of the Restricted Note will receive a Registered Note having a principal amount equal to that of the surrendered Restricted Note. Interest on each Registered Note will accrue from the last interest payment date on which interest was paid on the Restricted Note surrendered in exchange therefor.
Under existing SEC interpretations, Registered Notes acquired in the exchange offer by holders of Restricted Notes will be freely transferable without further registration under the Securities Act if the holder of the Registered Notes is acquiring the Registered Notes in the ordinary course of its business, that it has no arrangement or understanding to participate in the distribution of the Registered Notes and that it is not an affiliate of the Company, as such terms are interpreted by the SEC; however, broker-dealers (“participating broker-dealers”) receiving Registered Notes in a registered exchange offer will also have a prospectus delivery requirement with respect to resales of such Registered Notes. The SEC has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to Registered Notes (other than a resale of an unsold allotment from the original sale of the Restricted Notes) with the prospectus contained in the exchange offer registration statement relating to such Registered Notes.
This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Registered Notes received in exchange for Restricted Notes that were acquired by such broker-dealer as a result of market-making or other trading activities. We have agreed that, for a period of up to 180 days after the expiration date of the exchange offer, if requested by one or more such broker-dealers, we will amend or supplement this prospectus in order to expedite or facilitate the disposition of any Registered Notes by any such broker-dealers.
A holder of Restricted Notes who wishes to exchange its Restricted Notes for Registered Notes in the exchange offer will be required to represent that (1) any Registered Notes to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of the exchange offer, it has no arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of the Registered Notes in violation of the provisions of the Securities Act and it is not engaged in, and does not intend to engage in, the distribution of the Registered Notes, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of the Company and (4) if such holder is a broker-dealer that will receive the Registered Notes for its own account in exchange for the Restricted Notes that were acquired as a result of market-making or other trading activities, then such holder will deliver a prospectus (or, to the extent
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permitted by law, make available a prospectus to purchasers) in connection with any resale of such Registered Notes. See “Plan of Distribution.”
Resale of Registered Notes
Based on the position that the staff of the SEC enunciated in Exxon Capital Holdings Corporation, Morgan Stanley & Co. Incorporated and Shearman & Sterling, the Registered Notes issued in the exchange offer may be offered for resale, resold and otherwise transferred without registration under the Securities Act, and without delivering a prospectus that satisfies the requirements of Section 10 of the Securities Act, if the holder of the Restricted Notes who wishes to exchange its Restricted Notes for Registered Notes can make the representations set forth below under “Procedures for Tendering the Restricted Notes.” However, if such holder intends to participate in a distribution of the Registered Notes, is a broker-dealer that acquired the Restricted Notes directly from us for its own account in the initial offering of the Restricted Notes and not as a result of market-making activities or other trading activities or is an “affiliate” of the Company as defined in Rule 405 under the Securities Act, such holder will not be eligible to participate in the exchange offer, and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with the resale of its Restricted Notes. See “Additional Obligations” below.
A broker-dealer that has acquired Restricted Notes as a result of market-making or other trading activities has to deliver a prospectus in order to resell any Registered Notes it receives for its own account in the exchange offer. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Registered Notes received in exchange for Restricted Notes that were acquired by such broker-dealer as a result of market-making or other trading activities. We have agreed that, for a period of up to 180 days after the expiration date of the exchange offer, if requested by one or more such broker-dealers, we will amend or supplement this prospectus in order to expedite or facilitate the disposition of any Registered Notes by any such broker-dealers. See “Plan of Distribution” for more information regarding broker-dealers.
The exchange offer is not being made to, nor will we accept tenders for exchange from, holders of Restricted Notes in any jurisdiction in which the exchange offer or the acceptance of the exchange offer would not be in compliance with the securities or blue sky laws.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this prospectus and in the letter of transmittal, we will accept for exchange any and all Restricted Notes properly tendered and not withdrawn prior to the expiration time. The Restricted Notes may only be tendered in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000. We will issue $2,000 principal amount or an integral multiple of $1,000 of Registered Notes in exchange for a corresponding principal amount of Restricted Notes surrendered in the exchange offer. In exchange for each Restricted Note surrendered in the exchange offer, we will issue a Registered Note with a like principal amount.
The form and terms of the Registered Notes will be substantially identical in all material respects to the form and terms of the Restricted Notes, except that the Registered Notes will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with the Registration Rights Agreement.
The Registered Notes will evidence the same debt as the Restricted Notes. The Registered Notes will be issued under and entitled to the benefits of the same indenture that authorized the issuance of the Restricted Notes. Consequently, the Registered Notes and the corresponding Restricted Notes that are not exchanged in the applicable exchange offer will be treated as a single series of debt securities under the Indenture.
The exchange offer is not conditioned upon any minimum aggregate principal amount of Registered Notes being tendered for exchange.
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There will be no fixed record date for determining registered holders of Restricted Notes entitled to participate in the exchange offer.
We intend to conduct the exchange offer in accordance with the provisions of the Registration Rights Agreement, the applicable requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the SEC. Restricted Notes that are not tendered for exchange in the exchange offer will remain outstanding and continue to accrue interest and will be entitled to the rights and benefits such holders have under the Indenture.
We will be deemed to have accepted for exchange properly tendered Restricted Notes when we have given written notice of the acceptance to the exchange agent. The exchange agent will act as agent for the tendering holders for the purposes of receiving the Registered Notes from the Company and delivering the Registered Notes to such holders. Subject to the terms of the exchange offer and the Registration Rights Agreement, we expressly reserve the right to amend or terminate any of the exchange offer, and to not accept for exchange any Restricted Notes not previously accepted for exchange.
We will pay all charges and expenses, other than those brokerage commissions or fees or transfer or other taxes described below, in connection with the exchange offer. It is important that you read the section titled “Fees and Expenses” below for more details regarding fees and expenses incurred in the exchange offer.
Expiration Time; Extensions; Amendments
The exchange offer will expire at 5:00 p.m., New York City time, on , 2022, unless, in our sole discretion, we extend the expiration time of the exchange offer.
In order to extend the exchange offer, we will notify the exchange agent in writing of any extension of the exchange offer. We will notify registered holders of the applicable Restricted Notes in writing or by public announcement of the extension, if any, of the expiration time by no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration time.
We expressly reserve the right, in our sole discretion:
| • | to delay accepting for exchange any Restricted Notes due to an extension of the exchange offer; |
| • | to extend the exchange offer or to terminate the exchange offer and to refuse to accept Restricted Notes not previously accepted if any of the conditions set forth under “Conditions to the Exchange Offer” have not been satisfied by giving written notice of such extension or termination to the exchange agent; or |
| • | subject to the terms of the Registration Rights Agreement, to amend the terms of the exchange offer in any manner. |
Any such delay in acceptance, extension or termination will be followed as promptly as practicable by written notice or public announcement thereof to the registered holders of Restricted Notes. If we amend the exchange offer in a manner that we determine to constitute a material change, we will promptly disclose such amendment in a manner reasonably calculated to inform the holders of the relevant Restricted Notes of such amendment.
Without limiting the manner in which we may choose to make public announcements of any delay in acceptance, extension, termination or amendment of the exchange offer, we shall have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a timely press release to a financial news service. If we make any material change to any of the exchange offer, we will disclose this change by means of a post-effective amendment to the registration statement that includes this prospectus and
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will distribute an amended or supplemented prospectus to each registered holder of relevant Restricted Notes. In addition, we will extend the relevant exchange offer(s) for an additional five to ten business days as required by the Exchange Act, depending on the significance of the amendment, if the exchange offer(s) would otherwise expire during that period. We will promptly notify the exchange agent by written notice of any delay in acceptance, extension, termination or amendment of any of the exchange offer.
Conditions to the Exchange Offer
Notwithstanding any other terms of the exchange offer, we will not be required to accept for exchange, or exchange any Registered Notes for, any Restricted Notes, and we may terminate any of the exchange offer as provided in this prospectus before accepting any Restricted Notes for exchange, if we determine in our sole discretion:
| • | the exchange offer would violate applicable law or any applicable interpretation of the staff of the SEC; or |
| • | any action or proceeding has been instituted or threatened in any court or by any governmental agency with respect to the exchange offer. |
In addition, we will not be obligated to accept for exchange the Restricted Notes of any holder that has not made the representations described in the letter of transmittal and under “Purpose and Effect of the Exchange Offer,” “Procedures for Tendering the Restricted Notes” and “Plan of Distribution,” and such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to make available to it an appropriate form for registration of the Registered Notes under the Securities Act.
We expressly reserve the right, at any time or at various times, to extend the period of time during which the exchange offer is open. Consequently, we may delay acceptance of any Restricted Notes by giving written notice (including by public announcement) of such extension to the registered holders of the relevant Restricted Notes as promptly as practicable. During any such extensions, all relevant Restricted Notes previously tendered will remain subject to the exchange offer, and we may accept them for exchange unless they have been previously withdrawn. We will return any Restricted Notes that we do not accept for exchange for any reason without expense to the tendering holder promptly after the expiration or termination of the exchange offer.
We expressly reserve the right to amend or terminate any of the exchange offer, and to reject for exchange any Restricted Notes not previously accepted for exchange, upon the occurrence of the conditions of the exchange offer specified above. We will give written notice or public announcement of any extension, amendment, non-acceptance or termination to the registered holders of the relevant Restricted Notes as promptly as practicable. In the case of any extension, such notice will be issued no later than 9:00 a.m., New York City time, on the business day after the previously scheduled expiration time.
These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them or waive them in whole or in part at any or at various times in our sole discretion; provided that any waiver of a condition of tender with respect to any of the exchange offer will apply to all of the relevant, outstanding Restricted Notes and not only to particular relevant Restricted Notes. If we fail at any time to exercise any of the foregoing rights, that failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that we may assert at any time or at various times.
In addition, we will not accept for exchange any Restricted Notes tendered, and will not issue Registered Notes in exchange for any such Restricted Notes, if at such time any stop order will be threatened or in effect with respect to the Registration Statement of which this prospectus constitutes a part or the qualification of the Indenture under the Trust Indenture Act of 1939 (the “Trust Indenture Act”).
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Procedures for Tendering the Restricted Notes
Except as described below, a holder tendering Restricted Notes must, prior to 5:00 p.m., New York City time, on the expiration date:
| • | transmit a properly completed and duly executed letter of transmittal, including all other documents required by the letter of transmittal, to the exchange agent, or |
| • | if Restricted Notes are tendered in accordance with the book-entry procedures described below, the tendering holder must transmit an agent’s message (described below) to the exchange agent. |
Transmittal will be deemed made only when actually received or confirmed by the exchange agent.
In addition, the exchange agent must receive, before 5:00 p.m., New York City time, on the expiration date book-entry transfer of the Restricted Notes into the exchange agent’s account at DTC, the book-entry transfer facility.
The term “agent’s message” means a computer-generated message, transmitted by DTC to, and received by, the exchange agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the tendering participant that such participant has received and agrees to be bound by, and makes the representations and warranties contained in, the letter of transmittal and that we may enforce the letter of transmittal against such participant.
The method of delivery of Restricted Notes, letters of transmittal and all other required documents is at the holder’s election and risk. If delivery is by mail, we recommend that holders use registered mail, properly insured, with return receipt requested. In all cases, holders should allow sufficient time to assure timely delivery. Holders should not send letters of transmittal or Restricted Notes to anyone other than the exchange agent.
If the holder is a beneficial owner whose Restricted Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and wishes to tender, such holder should promptly instruct the registered holder to tender on its behalf. Any registered holder that is a participant in DTC’s book-entry transfer facility system may make book-entry delivery of the Restricted Notes by causing DTC to transfer the Restricted Notes into the exchange agent’s account.
Signatures on a letter of transmittal or a notice of withdrawal must be guaranteed unless the Restricted Notes surrendered for exchange are tendered:
| • | by a registered holder of the Restricted Notes that has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal; or |
| • | for the account of an “eligible institution.” |
If signatures on a letter of transmittal or a notice of withdrawal are required to be guaranteed, the guarantees must be by an “eligible institution.” An “eligible institution” is a financial institution, including most banks, savings and loan associations and brokerage houses, that is a participant in the Securities Transfer Agents Medallion Program or the New York Stock Exchange Medallion Signature Program.
We will reasonably determine all questions as to the validity, form and eligibility of Restricted Notes tendered for exchange and all questions concerning the timing of receipts and acceptance of tenders. These determinations will be final and binding.
We reserve the right to reject any particular Restricted Note not validly tendered, or any acceptance that might, in our judgment, be unlawful. We also reserve the right to waive any defects or irregularities with respect to the form of, or procedures applicable to, the tender of any particular Restricted Note before the expiration date.
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Unless waived, any defects or irregularities in connection with tenders of Restricted Notes must be cured before the expiration date of the applicable exchange offer. None of the Company, the exchange agent or any other person will be under any duty to give notification of any defect or irregularity in any tender of the Restricted Notes. None of the Company, the exchange agent or any other person will incur any liability for failing to give notification of any defect or irregularity.
If the letter of transmittal is executed by a person other than the registered holder of Restricted Notes, the letter of transmittal must be accompanied by the Restricted Notes endorsed by the registered holder or written instrument of transfer or exchange in satisfactory form, duly executed by the registered holder, in either case with the signature guaranteed by an eligible institution. In addition, in either case, the original endorsement or the instrument of transfer must be signed exactly as the name of any registered holder appears on the Restricted Notes.
If the letter of transmittal or any Restricted Notes or powers of attorney are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, these persons should so indicate when signing. Unless waived by us, proper evidence satisfactory to us of their authority to so act must be submitted.
All questions as to the form of documents and validity, eligibility (including time of receipt), acceptance for exchange and withdrawal of tendered Restricted Notes will be determined by the Company in its sole discretion, and its determination will be final and binding.
By signing or agreeing to be bound by the letter of transmittal, each tendering holder of Restricted Notes will represent, among other things, that:
| • | it is not an affiliate of ours or, if an affiliate of ours, will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable in connection with the resale of the Registered Notes; |
| • | the Registered Notes will be acquired in the ordinary course of its business; |
| • | it is not participating, does not intend to participate, and has no arrangement or understanding with anyone to participate, in the distribution (within the meaning of the Securities Act) of the Registered Notes; and |
| • | if such holder is a broker-dealer that will receive Registered Notes for its own account in exchange for Restricted Notes that were acquired as a result of market-making activities or other trading activities, that it will deliver a prospectus (or to the extent permitted by law, make available a prospectus to purchasers) in connection with any resale of such Registered Notes. See “Plan of Distribution.” |
Acceptance of Restricted Notes for Exchange; Delivery of Registered Notes
Upon satisfaction of all of the conditions to the applicable exchange offer, we will accept, promptly after the expiration date, all relevant Restricted Notes validly tendered and not validly withdrawn. We will issue the Registered Notes promptly after the expiration of the applicable exchange offer and acceptance of the relevant Restricted Notes. See “Conditions to the Exchange Offer” above. For purposes of the exchange offer, we will be deemed to have accepted validly tendered Restricted Notes for exchange when, as and if we have given written notice of such acceptance to the exchange agent.
For each Restricted Note accepted for exchange, the holder of the Restricted Note will receive a Registered Note having a principal amount equal to that of the surrendered Restricted Note. Restricted Notes accepted for exchange will cease to accrue interest from and after the date of completion of the exchange offer. Holders of Restricted Notes whose Restricted Notes are accepted for exchange will not receive any payment for accrued interest on the Restricted Notes otherwise payable on any interest payment date, the record date for which occurs on or after completion of the exchange offer and will be deemed to have waived their rights to receive such accrued interest on the Restricted Notes.
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In all cases, issuance of Registered Notes for Restricted Notes will be made only after timely receipt by the exchange agent of:
| • | book-entry confirmation of the deposit of the Restricted Notes into the exchange agent’s account at the book-entry transfer facility; |
| • | a properly completed and duly executed letter of transmittal or a transmitted agent’s message; and |
| • | all other required documents. |
Unaccepted or non-exchanged Restricted Notes will be returned without expense to the tendering holder of the Restricted Notes promptly after the expiration of the applicable exchange offer. In the case of Restricted Notes tendered by book-entry transfer in accordance with the book-entry procedures described below, the non-exchanged Restricted Notes will be returned or recredited promptly after the expiration of the applicable exchange offer.
Book-Entry Transfer
The exchange agent will make a request to establish an account for the Restricted Notes at DTC for purposes of the exchange offer within two business days after the date of this prospectus. Any financial institution that is a participant in DTC’s systems and is tendering Restricted Notes must make book-entry delivery of the Restricted Notes by causing DTC to transfer those Restricted Notes into the exchange agent’s account at DTC in accordance with DTC’s procedures for transfer, including its ATOP procedures. The participant should transmit its acceptance to DTC prior to 5:00 p.m., New York City time, on the expiration date. DTC will verify this acceptance, execute a book-entry transfer of the tendered Restricted Notes into the exchange agent’s account at DTC and then send to the exchange agent confirmation of this book-entry transfer, which confirmation must be received prior to 5:00 p.m., New York City time, on the expiration date. The confirmation of this book-entry transfer will include an agent’s message confirming that DTC has received an express acknowledgment from the participant that the participant has received and agrees to be bound by the letter of transmittal and that we may enforce the letter of transmittal against the participant. Delivery of Registered Notes issued in the exchange offer may be effected through book-entry transfer at DTC. However, the letter of transmittal (or an agent’s message in lieu thereof), with any required signature guarantees and any other required documents, must be transmitted to, and received by, the exchange agent at the address listed below under “Exchange Agent” (or its account at DTC with respect to an agent’s message) prior to 5:00 p.m., New York City time, on the expiration date.
Withdrawal of Tenders
Except as otherwise provided in this prospectus, holders of Restricted Notes may withdraw (and resubmit) their tenders at any time prior to the expiration of the applicable exchange offer. For a withdrawal to be effective, the exchange agent must receive a written notice of withdrawal at one of the addresses set forth below under “Exchange Agent,” or the holder must comply with the appropriate procedure of DTC’s ATOP system.
Any such notice of withdrawal must specify the name of the person who tendered the Restricted Notes to be withdrawn, identify the Restricted Notes to be withdrawn (including the principal amount of such Restricted Notes and the CUSIPs and total principal amount of such Restricted Notes) and, where Restricted Notes have been transmitted via ATOP, specify the name in which such Restricted Notes were registered if different from that of the withdrawing holder. Any such notice of withdrawal must also be signed by the person having tendered the Restricted Notes to be withdrawn in the same manner as the original signature on the letter of transmittal by which these Restricted Notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer sufficient to permit the trustee for the Restricted Notes to register the transfer of these notes into the name of the person having made the original tender and withdrawing the tender and, if applicable because the Restricted Notes have been tendered through the book-entry procedure, specify the name and number of the participant’s account at DTC to be credited if different than that of the person having tendered the Restricted Notes to be withdrawn.
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If certificates for Restricted Notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, the withdrawing holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an eligible guarantor institution unless such holder is an eligible guarantor institution.
If Restricted Notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Restricted Notes and otherwise comply with the procedures of such facility. We will determine all questions as to the validity, form and eligibility (including time of receipt) of such notices, and our determination shall be final and binding on all parties. We will deem any Restricted Notes so withdrawn not to have been validly tendered for exchange for purposes of the exchange offer. Any Restricted Notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder without cost to the holder (or, in the case of Restricted Notes tendered by book-entry transfer into the exchange agent’s account of DTC according to the procedures described above, such Restricted Notes will be credited to an account maintained with DTC for Restricted Notes) promptly after withdrawal, rejection of tender or termination of the applicable exchange offer. Properly withdrawn Restricted Notes may be retendered by following one of the procedures described under “Procedures for Tendering the Restricted Notes” above at any time prior to the expiration time.
Exchange Agent
The Bank of New York Mellon Trust Company, N.A. has been appointed as exchange agent for the exchange offer. You should direct questions and requests for assistance or requests for additional copies of this prospectus, or the letter of transmittal, to the exchange agent addressed as follows:
To Confirm by E-Mail:
Ct_Reorg_Unit_Inquiries@bnymellon.com
To Confirm by Telephone:
315-414-3349
To Confirm by Fax:
732-667-9408
By Overnight Courier, Registered/Certified Mail and by Hand:
The Bank of New York Mellon Trust Company, N.A., as Exchange Agent
c/o The Bank of New York Mellon Trust Company, N.A. Corporate Trust Operations-
Reorganization Unit
2001 Bryan Street, 10th Floor
Dallas, TX 75201
Attn: Joseph Felicia
Delivery to an address other than as set forth above does not constitute a valid delivery to the exchange agent.
Fees and Expenses
We will not make any payment to brokers, dealers or others soliciting acceptances of the exchange offer. We have agreed under the Registration Rights Agreement to pay all expenses incident to the exchange offer other than commissions or concessions of any broker-dealers and will indemnify the holders of the Restricted Notes and the Registered Notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act. The cash expenses to be incurred in connection with the exchange offer, including out-of-pocket expenses for the exchange agent, will be paid by the Company. We will not pay for underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of Restricted Notes by a holder.
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Consequences of Failure to Exchange
Holders of Restricted Notes who do not exchange their Restricted Notes for Registered Notes under the exchange offer will remain subject to the restrictions on transfer of such Restricted Notes as set forth in the legend printed on the Restricted Notes as a consequence of the issuance of the Restricted Notes pursuant to the exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws and otherwise as set forth in the offering memorandum distributed in connection with the private placement offering of the Restricted Notes.
In general, you may not offer or sell the Restricted Notes unless they are registered under the Securities Act or if the offer or sale is exempt from registration under the Securities Act and applicable state securities laws. Except as required by the Registration Rights Agreement, we do not intend to register resales of the Restricted Notes under the Securities Act. Based on interpretations of the SEC staff, Registered Notes issued pursuant to the exchange offer may be offered for resale, resold or otherwise transferred by their holders (other than any such holder that is the Company’s “affiliate” within the meaning of Rule 405 under the Securities Act) without compliance with the registration and prospectus delivery provisions of the Securities Act; so long as the holders acquired the Registered Notes in the ordinary course of the holders’ business and the holders have no arrangement or understanding with respect to the distribution of the Registered Notes to be acquired in the exchange offer. Any holder who tenders in the exchange offer for the purpose of participating in a distribution of the Registered Notes could not rely on the applicable interpretations of the SEC and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction.
We do not currently anticipate that we will register under the Securities Act any Restricted Notes that remain outstanding after completion of the exchange offer. See “Risk Factors—Risks Related to the Exchange Offer—You may have difficulty selling the Restricted Notes that you do not exchange.”
Accounting Treatment
We will record the Registered Notes in our accounting records at the same carrying value as the Restricted Notes for which they were exchanged in respect of the offer made pursuant to this prospectus, as reflected in our accounting records on the date of exchange. Accordingly, we will not recognize any gain or loss for accounting purposes in connection with the exchange offer. We will capitalize the costs of the exchange offer and amortize the new costs and remaining unamortized expenses related to the issuance of the Restricted Notes over the term of the Registered Notes.
Additional Obligations
In the Registration Rights Agreement, we agreed that under certain circumstances we would file a shelf registration statement with the SEC covering resales of notes by holders.
Other
Participation in the exchange offer is voluntary, and you should carefully consider whether to accept. You are urged to consult your financial and tax advisors in making your own decision on what action to take. We may in the future seek to acquire untendered Restricted Notes in the open market or privately negotiated transactions, through subsequent exchange offers or otherwise. We have no present plans to acquire any Restricted Notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any untendered Restricted Notes.
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DESCRIPTION OF THE REGISTERED NOTES
All references in this section to “Huntington,” “we,” “us,” “our,” the “Company” or similar references mean Huntington Bancshares Incorporated, a Maryland corporation, and not its subsidiaries.
General
We will issue the Registered Notes under the Subordinated Debt Indenture, dated as of December 29, 2005 (the “Base Indenture”), between Huntington Bancshares Incorporated, as the issuer, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to JPMorgan Chase Bank, N.A.), as Trustee, as supplemented by the Second Supplemental Indenture dated as of August 16, 2021 (the “Issue Date”) between the Company and the Trustee. We refer to the Base Indenture, as supplemented by the Second Supplemental Indenture, as the “Indenture,” and we refer to The Bank of New York Mellon Trust Company, N.A., in its capacity as the trustee, as the “Trustee.” The following description of the Registered Notes is subject to and qualified in its entirety by reference to the Indenture. Wherever we refer to particular sections or defined terms of the Indenture, it is our intent that those sections or defined terms will be incorporated by reference in this prospectus. The Base Indenture was previously filed with the SEC as Exhibit 4(e) to Form S-3 (Film No. 06538577) on January 19, 2006, and is incorporated herein by reference. The Second Supplemental Indenture, including the form of the Registered Notes, was previously filed with the SEC as Exhibit 4.1 to the Current Report on Form 8-K on August 16, 2021 (Film No. 211179276) and is incorporated herein by reference.
We may, without the consent of the holders of the Registered Notes, increase the principal amount of the Registered Notes by issuing additional Registered Notes in the future with the same terms and conditions, except for any differences in the issue date, the issue price and interest accrued prior to the date of issuance of the additional Registered Notes, and with the same CUSIP number as the Registered Notes; provided that if any additional Registered Notes are not fungible with the Registered Notes for U.S. federal income tax purposes, such additional Registered Notes will be issued under a separate CUSIP number. The Registered Notes and any additional Registered Notes would rank equally and ratably and would be treated as a single series for all purposes under the Indenture.
The Registered Notes will mature at 100% of their principal amount on August 15, 2036 (the “Maturity Date”).
As described below under “—Subordination,” the Registered Notes will be unsecured and subordinated in right of payment to the payment of our existing and future Senior Debt (as defined in the Indenture), will rank equal in right of payment to all of our existing and future indebtedness ranking on a parity with the Registered Notes, including our 4.350% Subordinated Notes due 2023, and will be senior to any obligation of ours that ranks junior and not equally with or prior to the Registered Notes, including our junior subordinated debentures or indentures, as applicable, issued to our statutory trusts (which debentures rank junior to the Registered Notes). The Registered Notes are obligations of Huntington only and are not guaranteed by any of our subsidiaries. As a result, the Registered Notes will be structurally subordinated to the liabilities of our subsidiaries, including the Bank. The Registered Notes will not be entitled to any sinking fund.
Since we are a holding company, our rights and the rights of our creditors, including holders of the Registered Notes, to participate in the assets of any of our subsidiaries upon the liquidation or reorganization of any of our subsidiaries will be subject to prior claims of the creditors of any such subsidiary, including, in the case of the Bank, its depositors, except to the extent that we are a creditor of such subsidiary with recognized claims against the subsidiary. Claims on our subsidiaries by creditors other than us are likely to include claims with respect to long-term debt and substantial obligations with respect to deposit liabilities, federal funds purchased, securities sold under repurchase agreements, other short-term borrowings and various other financial obligations.
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The Registered Notes will be subject to defeasance under the conditions described below in “—Discharge, Defeasance and Covenant Defeasance.”
The Registered Notes are not savings accounts, deposits or other obligations of any of our bank or non-bank subsidiaries and are not insured by the FDIC, the Federal Reserve or any other governmental agency or instrumentality.
The Registered Notes will be issued in fully registered book-entry form without coupons and in denominations of $2,000 and integral multiples of $1,000 in excess thereof. We do not intend to apply for the listing of the Registered Notes on any securities exchange.
Payments of principal and interest to owners of the book-entry interests described below are expected to be made in accordance with the procedures of DTC and its participants, including Clearstream Banking, société anonyme (“Clearstream”), and Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”).
Interest
The Registered Notes will bear interest (i) to, but excluding, August 15, 2031 (the “Reset Date”), or to, but excluding, the date of earlier redemption, at a fixed rate of 2.487% per annum and (ii) during the period from and including the Reset Date to, but excluding, the Maturity Date, or to, but excluding, the date of earlier redemption, at a rate per annum that will be the Five-year U.S. Treasury Rate as of the day falling two Business Days (as defined in the Indenture) prior to the Reset Date (the “Reset Determination Date”), plus 1.170% per annum.
We will pay interest on the Registered Notes semiannually in arrears, on February 15 and August 15 of each year, ending on the Maturity Date. Holders of the Restricted Notes that are accepted for exchange will be deemed to have waived the right to receive payment of accrued interest on those Restricted Notes from the last interest payment date on which interest was paid on such Restricted Notes to the date of issuance of the Registered Notes. Interest on the Restricted Notes accepted for exchange will cease to accrue upon issuance of the Registered Notes. Interest is payable on the Registered Notes beginning with the first interest payment date following the consummation of the exchange offer.
Interest on the Registered Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months. If an interest payment date falls on a day that is not a Business Day, we will postpone the interest payment to the next succeeding Business Day, but the payment made on such date will be treated as having been made on the date that the payment was first due and the holders of the Registered Notes will not be entitled to any further interest or other payments with respect to such postponement.
The interest payable on the Registered Notes on any interest payment date will, subject to certain exceptions, be paid to the person in whose name the Registered Notes are registered at the close of business on February 1 or August 1, whether or not a Business Day, immediately preceding the applicable interest payment date.
The “Five-year U.S. Treasury Rate” means, as of the Reset Determination Date, the average of the yields on actively traded U.S. treasury securities adjusted to constant maturity, for five-year maturities, for the five Business Days appearing under the caption “Treasury Constant Maturities” in the most recently published statistical release designated H.15 or any successor publication which is published by the Federal Reserve as of 5:00 p.m. (Eastern Time) as of any date of determination, as determined by the calculation agent in its sole discretion. If no calculation is provided as described above, then the calculation agent, after consulting such sources as it deems comparable to the foregoing calculations, or any such source as it deems reasonable from which to estimate the five-year treasury rate, shall determine the Five-year U.S. Treasury Rate in its sole discretion, provided that if the calculation agent determines there is an industry-accepted successor Five-year U.S. Treasury Rate, then the calculation agent shall use such successor rate.
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“H.15” means the daily statistical release designated as such, or any successor publication, published by the Federal Reserve.
Unless we have delivered notice of redemption of all outstanding Registered Notes, with such redemption to occur on the Reset Date, we will appoint a calculation agent (which in no event shall be the Trustee or any paying agent unless otherwise agreed to in writing) with respect to the Registered Notes prior to the Reset Determination Date. The Five-year U.S. Treasury Rate will be determined by the calculation agent on the Reset Determination Date. The calculation agent will notify us within one Business Day of the interest rate from and after the Reset Date. We shall then promptly notify the Trustee in writing within five Business Days of such interest rate. We or our affiliate may assume the duties of the calculation agent. Any determination, decision or election that may be made by the Company or the calculation agent pursuant to the provisions described in this prospectus, including any determination with respect to a rate, will be conclusive and binding absent manifest error, may be made in the Company’s or the calculation agent’s sole discretion, and, notwithstanding anything to the contrary in the documentation relating to the Registered Notes, shall become effective without consent from any other party. The calculation agent’s determination of any interest rate will be on file at our principal offices, will be made available to any holder of Registered Notes upon request and will be final and binding in the absence of manifest error.
Interest will be payable by wire transfer in immediately available funds in U.S. dollars at the office of the paying agent or, in the event the Registered Notes are not represented by a Global Note (as defined below), at the office or agency of the Company maintained for such purpose in Columbus, Ohio.
Neither the Trustee nor any paying agent will have any obligation as calculation agent or for making any determinations to be made by the calculation agent as described above. The Trustee and paying agent may conclusively rely on any calculation made by the calculation agent without independent verification and shall have no liability or responsibility for any calculations or any information in connection with such calculations.
Subordination
Our obligation to make any payment on account of the principal and interest on the Registered Notes will be expressly subordinate and junior in right of payment and liquidation to the prior payment in full in cash of all of our Senior Debt. “Senior Debt” is defined in the Indenture to mean (other than obligations pursuant to the Base Indenture, including the Registered Notes) all of our (and not our subsidiaries’):
| • | indebtedness for borrowed or purchased money, whether or not evidenced by bonds, debentures, notes, or other written instruments, including obligations incurred in connection with the acquisition of property, assets or businesses; |
| • | capital lease obligations; |
| • | obligations arising from off-balance sheet guarantees and direct credit substitutes, including under letters of credit, bankers’ acceptances or similar facilities issued for our account; |
| • | obligations issued or assumed as the deferred purchase price for property or services, including all obligations under master lease transactions pursuant to which we have agreed to be treated as owner of the subject property for U.S. federal income tax purposes; |
| • | obligations with respect to derivative products, including securities contracts, commodity contracts, interest rate and currency swap agreements, currency hedge, exchange or similar agreements, cap, floor, and collar agreements, currency spot and forward contracts, and other similar agreements or arrangements; |
| • | guarantees, endorsements (other than by endorsement of negotiable instruments for collection in the ordinary course of business), and other similar contingent obligations in respect of obligations of others |
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| of a type described in the preceding bullets, whether or not classified as a liability on a balance sheet prepared in accordance with accounting principles generally accepted in the United States; and |
| • | obligations to our other general creditors; |
in each case, whether outstanding on the date that we entered into the Indenture or arising after that time.
Senior Debt will not include: (i) our capital stock, including our preferred stock, or depositary shares representing our stock, (ii) our obligations to our subsidiaries or to any Person with respect to which we become a subsidiary, and (iii) all indebtedness that (a) expressly states that it is junior to or ranks equally in right of payment with the Registered Notes, (b) is identified as junior to, or equal in right of payment with, the Registered Notes in any board resolution establishing such indebtedness or in any supplemental indenture and (c) our junior subordinated debentures or indentures, as applicable, issued to our statutory trusts (which rank junior to the Registered Notes) and the 4.350% Subordinated Notes due 2023 that are our obligations (which rank equally with the Registered Notes).
Senior Debt will continue to be Senior Debt and entitled to the benefits of the subordination provisions of the Indenture irrespective of any amendment, modification, or waiver of any term of Senior Debt or extension or renewal of Senior Debt.
In the event of any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment of debt, composition, or other similar proceeding relating to Huntington or its property, any proceeding for the liquidation, dissolution, or other winding up of Huntington, whether voluntary or involuntary and whether or not involving insolvency, bankruptcy or receivership proceedings, any assignment by Huntington for the benefit of creditors or any other marshalling of the assets of Huntington, all of our obligations to holders of our Senior Debt will be entitled to be paid in full before any payment or distribution, whether in cash, securities or other property, can be made on account of the principal or interest on the Registered Notes. Only after payment in full of all amounts owing with respect to Senior Debt will the holders of the Registered Notes, together with the holders of any of our obligations ranking on a parity with the Registered Notes, be entitled to be paid from our remaining assets the amounts due and owing on account of unpaid principal of and interest on the Registered Notes.
In the event and during the continuation of any default in the payment of the principal of or any premium or interest on any Senior Debt beyond any applicable grace period with respect to such Senior Debt, or in the event that any event of default with respect to any Senior Debt shall have occurred and be continuing permitting the holders of such Senior Debt (or the trustee on behalf of the holders of such Senior Debt) to declare such Senior Debt due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured or waived or shall have ceased to exist and such acceleration shall have been rescinded or annulled, or in the event any judicial proceeding shall be pending with respect to any such default in payment or event of default, then no payment shall be made by Huntington on account of the principal of or interest on the Registered Notes or on account of the purchase or other acquisition of any Registered Notes.
If we violate the Indenture by making a payment or distribution to holders of the Registered Notes before we have paid all Senior Debt in full, then such holders of the Registered Notes will have to pay or transfer the payments or distributions to the trustee in bankruptcy, receivership or liquidation, or other person distributing our assets for payment of Senior Debt.
By reason of the above subordination in favor of the holders of our Senior Debt, in the event of our bankruptcy or insolvency, holders of our Senior Debt may receive more, ratably, and holders of the Registered Notes may receive less, ratably, than our other creditors.
In addition, the Registered Notes may be fully subordinate to interests held by the U.S. government if we enter into a receivership, insolvency, liquidation, or similar proceeding, including a proceeding under the “orderly liquidation authority” provisions of the Dodd-Frank Act.
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The Registered Notes do not contain any limitation on the amount of Senior Debt or other obligations ranking senior to, pari passu with or junior to the indebtedness evidenced by the Registered Notes that may be hereafter incurred by Huntington or its subsidiaries.
With respect to the assets of a subsidiary of Huntington, creditors of Huntington (including holders of the Registered Notes) are structurally subordinated to the prior claims of creditors of such subsidiary, except to the extent that Huntington may be a creditor with recognized claims against such subsidiary.
The Registered Notes will not be guaranteed by any of our subsidiaries. Our subsidiaries may, without notice or consent of the holders of the Registered Notes, incur additional debt or liabilities in the future, all of which would rank structurally senior to the Registered Notes. Huntington may from time to time, without notice or consent of the holders of the Registered Notes, incur additional indebtedness ranking equally with the Registered Notes, as well as junior subordinated indebtedness ranking junior to the Registered Notes.
As of December 31, 2021, we had approximately $2.1 billion of Senior Debt, approximately $781 million of indebtedness ranking on a parity with the Registered Notes and approximately $247 million of indebtedness ranking junior to the Registered Notes, including our junior subordinated debentures or indentures, as applicable, issued to our statutory trusts. As of that date, we had a total consolidated indebtedness of $7.1 billion, including $3.2 billion of indebtedness of our subsidiaries.
Optional Redemption
On at least 10 days but no more than 60 days prior written notice delivered to the registered holders of the Registered Notes, we may redeem the Registered Notes in whole, but not in part, on, and only on, the Reset Date, subject to obtaining the prior approval of the Federal Reserve to the extent such approval is then required under the rules of the Federal Reserve, at a redemption price equal to 100% of the aggregate principal amount of the Registered Notes, plus accrued and unpaid interest thereon, if any, to, but excluding, the redemption date. We shall provide written notice to the Trustee of any redemption at least 15 days prior to the redemption date (unless a shorter notice is satisfactory to the Trustee).
The Registered Notes may not otherwise be redeemed prior to the Maturity Date, except that on at least 10 days but no more than 60 days prior written notice delivered to the registered holders of the Registered Notes, we may also at our option and subject to prior approval of the Federal Reserve to the extent such approval is then required under the rules of the Federal Reserve, redeem the Registered Notes in whole, but not in part, at a redemption price equal to 100% of the principal amount of the Registered Notes being redeemed plus accrued and unpaid interest to, but excluding, the date of redemption, within 90 days after the occurrence of:
| • | a “Tax Event,” defined in the Indenture to mean the receipt by us of an opinion of independent tax counsel to the effect that as a result of (a) an amendment to or change (including any announced prospective amendment or change) in any law or treaty, or any regulation thereunder, of the United States or any of its political subdivisions or taxing authorities; (b) a judicial decision, administrative action, official administrative pronouncement, ruling, regulatory procedure, regulation, notice or announcement, including any notice or announcement of intent to adopt or promulgate any ruling, regulatory procedure or regulation (any of the foregoing, an “administrative or judicial action”); or (c) an amendment to or change in any official position with respect to, or any interpretation of, an administrative or judicial action or a law or regulation of the United States that differs from the previously generally accepted position or interpretation in each case, which change or amendment becomes effective or which administrative or judicial action is announced on or after the Issue Date, there is more than an insubstantial risk that interest payable by us on the Registered Notes is not, or, within 90 days after the date of such opinion, will not be, deductible by us, in whole or in part, for U.S. federal income tax purposes; |
| • | a “Tier 2 Capital Event,” defined in the Indenture to mean our good faith determination that, as a result of (a) any amendment to, or change in, the laws, rules or regulations of the United States (including, for |
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| the avoidance of doubt, any agency or instrumentality of the United States, including the Federal Reserve and other federal bank regulatory agencies) or any political subdivision of or in the United States that is enacted or becomes effective after the Issue Date of the Registered Notes; (b) any proposed change in those laws, rules or regulations that is announced or becomes effective after the Issue Date of the Registered Notes; or (c) any official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws, rules, regulations, policies or guidelines with respect thereto that is announced after the Issue Date, there is more than an insubstantial risk that we will not be entitled to treat the Registered Notes then outstanding as “Tier 2 Capital” (or its equivalent) for purposes of the capital adequacy rules or regulations of the Federal Reserve (or, as and if applicable, the capital adequacy rules or regulations of any successor appropriate federal banking agency) as then in effect and applicable to us, for so long as any Registered Notes are outstanding; or |
| • | Huntington becoming required to register as an investment company pursuant to the 1940 Act. |
If we elect to redeem the Registered Notes, we will provide notice by first class mail, postage prepaid, or electronic transmission, addressed to the holders of record (which, in the case of registered global notes, will be DTC or its nominee or a nominee of Euroclear and Clearstream) of the Registered Notes. Such mailing or transmission will be at least 10 days and not more than 60 days before the redemption date. Each notice of redemption will state:
| • | the redemption date; |
| • | the redemption price; |
| • | “CUSIP” or “ISIN” number of the Registered Notes; |
| • | that on the redemption date the redemption price will become due and payable upon each Registered Note, and that interest thereon will cease to accrue on and after the date of redemption; and |
| • | the place or places where the Registered Notes are to be surrendered for payment of the redemption price. |
If the Registered Notes are to be redeemed, the redemption price payable to the holder of any Registered Notes called for redemption will be payable on the applicable redemption date against the surrender to us or our agent of any certificate(s) evidencing the Registered Notes. If money sufficient to pay the redemption price of, and any accrued interest on, the Registered Notes on the redemption date is deposited with our paying agent on or before the redemption date and certain other conditions are satisfied, then on and after the redemption date, interest will cease to accrue on the Registered Notes and the Registered Notes will cease to be outstanding.
Notwithstanding any of the foregoing, installments of interest on the Registered Notes that are due and payable on an interest payment date falling on or prior to the redemption date will be payable on the interest payment date to the registered holders as of the close of business on the relevant record date in accordance with the Registered Notes and the Indenture.
Under the Federal Reserve’s current risk-based capital regulations, any redemption of the Registered Notes will be subject to the prior approval of the Federal Reserve. In addition, prior to exercising our option to redeem the Registered Notes, or immediately thereafter, we will be required to either replace the redeemed Registered Notes with an equivalent amount of a financial instrument that meets the Federal Reserve’s regulatory capital criteria, or demonstrate to the satisfaction of the Federal Reserve that following redemption, or immediately thereafter, we would continue to hold an amount of capital that is commensurate with Huntington’s risk.
The Registered Notes will not be subject to repayment at the option of the holder at any time prior to the Maturity Date and will not be entitled to any sinking fund.
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Merger, Consolidation or Sale of Assets
We may consolidate with, or sell, lease or otherwise transfer all or substantially all of our assets to, or merge with or into, any other corporation, trust or other entity, provided that:
| • | we are the survivor in the merger, or the survivor, if not us, (1) is a Person (as defined in the Indenture) organized and validly existing under the laws of the United States, any state of the United States or the District of Columbia and (2) expressly assumes by supplemental indenture the due and punctual payment of the principal of and interest on all of the outstanding Registered Notes and the due and punctual performance and observance of all of the covenants and conditions to be performed by us contained in the Indenture; |
| • | immediately after giving effect to the transaction, no event of default (as described below) under the Indenture, and no event which, after notice or the lapse of time, or both, would become an event of default, shall have occurred and be continuing; and |
| • | other conditions described in the Indenture are met. |
Upon any such consolidation, merger, or sale, the successor corporation formed, or into which we are merged or to which we are sold, shall succeed to, and be substituted for, us under the Indenture.
This covenant would not apply to any recapitalization transaction, change of control of us or a transaction in which we incur a large amount of additional debt unless the transactions or change of control included a merger or consolidation or transfer of all or substantially all of our assets. There are no covenants or other provisions in the Indenture providing for a put or increased interest or that would otherwise afford holders of the Registered Notes additional protection in the event of a recapitalization transaction, a change of control of us or a transaction in which we incur or acquire a large amount of additional debt.
Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, in certain circumstances there may be a degree of uncertainty as to whether a particular transaction would involve “all or substantially all” of the property or assets of a person.
This covenant would not apply to the direct or indirect conveyance or transfer of all or any portion of the stock, assets or liabilities of any of our wholly owned subsidiaries to us or our other wholly owned subsidiaries.
Waiver of Certain Covenants
We may choose not to comply with any term, provision or condition of certain covenants contained in the Indenture, or with certain other terms, provisions or conditions with respect to the Registered Notes (except any such term, provision or condition which could not be amended without the consent of all holders of the Registered Notes), if before the time for compliance with the covenant, term, provision or condition, the holders of at least a majority in principal amount of the Registered Notes either waive compliance in that instance or generally waive compliance with that covenant, provision or condition. Unless the holders of the Registered Notes expressly waive compliance with a covenant and the waiver has become effective, our obligations and the duties of the Trustee in respect of the term, provision, or condition will remain in full force and effect.
Events of Default; Limitation on Suits
Under the Indenture, an event of default will occur with respect to the Registered Notes only (1) if a court enters an order in an involuntary bankruptcy or insolvency proceeding of Huntington that continues unstayed and in effect for a period of 60 consecutive days or (2) if Huntington commences a bankruptcy or insolvency proceeding or consents to the entry of an order in an involuntary bankruptcy or insolvency proceeding or (3) if Huntington is placed into receivership in a proceeding under the “orderly liquidation authority” provisions of the Dodd-Frank Act.
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If an event of default occurs and is continuing, the principal amount of and accrued and unpaid interest on the Registered Notes shall become immediately due and payable. The foregoing provision would, in the event of the bankruptcy, insolvency or receivership involving Huntington, be subject as to enforcement to the broad equity powers of a federal bankruptcy court and to the determination by that court of the nature and status of the payment claims of the holders of the Registered Notes. At any time after a declaration of acceleration with respect to the Registered Notes has been made, but before a judgment or decree for payment of the money due has been obtained, the holders of a majority in principal amount of outstanding Registered Notes and other affected series of securities issued under the Indenture (we refer to the Registered Notes and such other securities as the “Securities”), may rescind and annul the acceleration but only if certain conditions have been satisfied.
There is no right of acceleration in the case of a default in the payment of principal of or interest on the Registered Notes or in our performance of any other obligation under the Registered Notes or the Indenture. If we default in our obligation to pay any interest on the Registered Notes when due and payable and such default continues for a period of 30 days, or if we default in our obligation to pay the principal amount due upon maturity, or if we breach any covenant or agreement contained in the Indenture, then the Trustee may, subject to certain limitations and conditions, seek to enforce its rights and the rights of the holders of Registered Notes of the performance of any covenant or agreement in the Indenture.
The Indenture provides that, subject to the duty of the Trustee upon the occurrence and continuance of an event of default to act with the required person standard of care, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders of Registered Notes unless such holders shall have offered to the Trustee reasonable indemnity or security against the costs, expenses and liabilities which may be incurred by it in complying with such request or direction. Subject to certain provisions, the holders of a majority in principal amount of the outstanding Registered Notes will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Registered Notes.
No holder of Registered Notes shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy under the Indenture, unless:
| • | such holder has previously given written notice to the Trustee of a continuing event of default with respect to the Registered Notes; |
| • | the holders of not less than 25% in principal amount of the Registered Notes shall have made written request to the Trustee to institute proceedings in respect of such event of default in its own name as Trustee under the Indenture; |
| • | such holder or holders have offered to the Trustee indemnity against the costs, expenses, and liabilities to be incurred in complying with such request; |
| • | the Trustee for 60 days after its receipt of such notice, request, and offer of indemnity has failed to institute any such proceeding; and |
| • | no direction inconsistent with such written request has been given to the Trustee during such 60 day-period by the holders of a majority in principal amount of the outstanding Registered Notes. |
In any event, the Indenture provides that no one or more of such holders shall have any right under the Indenture to affect, disturb or prejudice the rights of any other holder, or to obtain priority or preference over any of the other holders or to enforce any right under the Indenture, except in the manner provided in the Indenture and for the equal and ratable benefit of all holders of Registered Notes.
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Modification and Waiver
The Indenture provides that we and the Trustee may modify or amend the Indenture with or, in certain cases, without the consent of the holders of a majority in principal amount of outstanding Registered Notes and other affected Securities; provided, however, that any modification or amendment may not, without the consent of the holder of each outstanding Security affected thereby:
| • | change the stated maturity of the principal of, or any installment of interest on, any Security; |
| • | reduce the principal amount or rate of interest of any Security; |
| • | change the place of payment where any Security or any interest is payable; |
| • | impair the right to institute suit for the enforcement of any payment on or after its stated maturity; |
| • | modify the provisions of the Indenture with respect to the subordination of the Securities in a manner adverse to the holders of the Securities; or |
| • | reduce the percentage in principal amount of the outstanding Securities the consent of whose holders is required for any supplemental indenture, or the consent of whose holders is required for any waiver of compliance with the provisions of or defaults under the Indenture and the consequences thereof under the Indenture. |
In addition, the holders of a majority in principal amount of the outstanding Registered Notes may, on behalf of all holders of Registered Notes, waive compliance by us with certain terms, conditions and provisions of the Indenture, as well as any past default and/or the consequences of default, other than any default in the payment of principal or interest or any breach in respect of a covenant or provision that cannot be modified or amended without the consent of the holder of each outstanding Security of the affected series. In connection with any modification, waiver or amendment of the Indenture, we shall provide the Trustee with the required documentation under the Indenture.
Discharge, Defeasance and Covenant Defeasance
Under the Indenture, we may discharge certain obligations to holders of the Registered Notes that have not already been delivered to the Trustee for cancellation and that either have become due and payable or will become due and payable within one year. We can discharge these obligations by irrevocably depositing with the Trustee funds in United States dollars in an amount sufficient to pay the entire indebtedness on the Registered Notes, including the principal of and interest payable on the Registered Notes to the date of the deposit, if the Registered Notes have become due and payable, or to the Maturity Date, if the Registered Notes have not yet become due and payable.
We may also elect either of the following:
| • | to be defeased and discharged from any and all obligations with respect to the Registered Notes (“legal defeasance”), except certain of our obligations, including but not limited to: |
| • | to register the transfer or exchange of the Registered Notes; |
| • | to replace temporary or mutilated, destroyed, lost or stolen Registered Notes; |
| • | to maintain an office or agency for the Registered Notes; and |
| • | to hold moneys for payment in trust; or |
| • | to be defeased and discharged from certain of our obligations described under “—Waiver of Certain Covenants” and our obligations described under “—Merger, Consolidation or Sale of Assets” or, to the extent permitted by the terms of the Registered Notes, our obligations with respect to any other covenant (“covenant defeasance”). |
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If we choose to defease and discharge our obligations under the covenants with respect to the Registered Notes, we will not have any obligations with respect to such covenants and neither the Trustee nor the holders of the Registered Notes will have any rights with respect to such covenants. However, to make either election, we must irrevocably deposit with the Trustee, in trust, an amount, in United States dollars, in United States government obligations or both, that will provide sufficient funds to pay the principal of and interest on the Registered Notes on the relevant scheduled due dates.
We may defease and discharge our obligations as described in the preceding paragraphs only if, among other things:
| • | we have delivered to the Trustee an opinion of counsel to the effect that the holders of the Registered Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the legal defeasance or covenant defeasance described in the previous paragraphs and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the legal defeasance or covenant defeasance had not occurred. In the case of legal defeasance, the opinion of counsel must refer to and be based upon a ruling of the Internal Revenue Service (“IRS”) or a change in applicable U.S. federal income tax laws occurring after the date of the Indenture; and |
| • | no event of default, or event that with notice or lapse of time or both will be an event of default, has occurred and is continuing with respect to the Registered Notes. |
Trustee
The Bank of New York Mellon Trust Company, N.A. will act as Trustee for the Registered Notes. From time to time, we and some of our subsidiaries may maintain deposit accounts and conduct other banking transactions, including lending transactions, with the Trustee and its affiliates in the ordinary course of business. Additionally, we maintain banking relationships with The Bank of New York Mellon Trust Company, N.A. and its affiliates in the ordinary course of business. These banking relationships include The Bank of New York Mellon Trust Company, N.A. and its affiliates serving as trustee under indentures involving our existing debt securities, serving as trustee of our trust preferred securities, and providing us with general banking services. Upon the occurrence of an event of default or an event which, after notice or lapse of time or both, would become an event of default under the Registered Notes, or upon the occurrence of a default under another indenture under which The Bank of New York Mellon Trust Company, N.A. serves as trustee for our other existing debt securities or trust preferred securities, the Trustee may be deemed to have a conflicting interest with respect to the other debt securities as to which we are not in default for purposes of the Trust Indenture Act and, accordingly, may be required to resign as Trustee under the Indenture. In that event, we would be required to appoint a successor trustee.
Upon the registration of the Registered Notes, the Trustee will have all of the duties and responsibilities specified under the Trust Indenture Act.
The Trustee, in any capacity, has not participated in the preparation of this prospectus or makes any representation or warranty as to the accuracy or validity of the information contained herein.
Miscellaneous
We, or our affiliates, may from time to time purchase any of the Registered Notes that are then outstanding, by tender in the open market or by private agreement.
Notices
Any notices required to be given to the holders of the Registered Notes will be given to DTC.
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Governing Law
The Indenture and the Registered Notes are governed by and will be construed in accordance with the laws of the State of New York.
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BOOK-ENTRY SETTLEMENT AND CLEARANCE
The Global Notes
Like the Restricted Notes, the Registered Notes will be issued in the form of registered notes in global form, without interest coupons (the “global notes”).
Upon issuance, each of the global notes will be deposited with the trustee as custodian for DTC and registered in the name of Cede & Co., as nominee of DTC.
Ownership of beneficial interests in each global note will be limited to persons who have accounts with DTC (“DTC participants”) or persons who hold interests through DTC participants. We expect that under procedures established by DTC:
| • | upon deposit of each global note with DTC’s custodian, DTC will credit portions of the principal amount of the global note to the accounts of the DTC participants; and |
| • | ownership of beneficial interests in each global note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC participants) and the records of DTC participants (with respect to other owners of beneficial interests in the global note). |
Beneficial interests in the global notes may not be exchanged for notes in physical, certificated form except in the limited circumstances described below.
Book-Entry Procedures for the Global Notes
All interests in the global notes will be subject to the operations and procedures of DTC, Euroclear and Clearstream, as applicable. We have provided the following summaries of those operations and procedures solely for the convenience of investors. The operations and procedures of each settlement system are controlled by that settlement system and may be changed at any time. We are not responsible for those operations or procedures.
DTC has advised us that it is:
| • | a limited purpose trust company organized under the laws of the State of New York; |
| • | a “banking organization” within the meaning of the New York Banking Law; |
| • | a member of the U.S. Federal Reserve System; |
| • | a “clearing corporation” within the meaning of the Uniform Commercial Code; and |
| • | a “clearing agency” registered under Section 17A of the Exchange Act. |
DTC was created to hold securities for its participants and to facilitate the clearance and settlement of securities transactions between its participants through electronic book-entry changes to the accounts of its participants.
DTC’s participants include securities brokers and dealers, including banks and trust companies, clearing corporations and other organizations. Indirect access to DTC’s system is also available to others such as banks, brokers, dealers and trust companies; these indirect participants clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. Investors who are not DTC participants may beneficially own securities held by or on behalf of DTC only through DTC participants or indirect participants in DTC.
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So long as DTC’s nominee is the registered owner of a global note, that nominee will be considered the sole owner or holder of the Registered Notes represented by that global note for all purposes under the Indenture. Except as provided below, owners of beneficial interests in a global note:
| • | will not be entitled to have the Registered Notes represented by the global note registered in their names; |
| • | will not receive or be entitled to receive physical, certificated notes; and |
| • | will not be considered the owners or holders of the notes under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee under the Indenture. |
As a result, each investor who owns a beneficial interest in a global note must rely on the procedures of DTC to exercise any rights of a holder of the Registered Notes under the Indenture (and, if the investor is not a participant or an indirect participant in DTC, on the procedures of the DTC participant through which the investor owns its interest).
Payments of principal, premium (if any) and interest with respect to the Registered Notes represented by a global note will be made by the trustee to DTC’s nominee as the registered holder of the global note. Neither we nor the trustee will have any responsibility or liability for the payment of amounts to owners of beneficial interests in a global note, for any aspect of the records relating to or payments made on account of those interests by DTC, or for maintaining, supervising or reviewing any records of DTC relating to those interests.
Payments by participants and indirect participants in DTC to the owners of beneficial interests in a global note will be governed by standing instructions and customary industry practice and will be the responsibility of those participants or indirect participants and DTC.
Transfers between participants in DTC will be effected under DTC’s procedures and will be settled in same-day funds. Transfers between participants in Euroclear or Clearstream will be effected in the ordinary way under the rules and operating procedures of those systems.
Cross-market transfers between DTC participants, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected within DTC through the DTC participants that are acting as depositaries for Euroclear and Clearstream. To deliver or receive an interest in a global note held in a Euroclear or Clearstream account, an investor must send transfer instructions to Euroclear or Clearstream, as the case may be, under the rules and procedures of that system and within the established deadlines of that system. If the transaction meets its settlement requirements, Euroclear or Clearstream, as the case may be, will send instructions to its DTC depositary to take action to effect final settlement by delivering or receiving interests in the relevant global notes in DTC, and making or receiving payment under normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream participants may not deliver instructions directly to the DTC depositaries that are acting for Euroclear or Clearstream.
Because of time zone differences, the securities account of a Euroclear or Clearstream participant that purchases an interest in a global note from a DTC participant will be credited on the business day for Euroclear or Clearstream immediately following the DTC settlement date. Cash received in Euroclear or Clearstream from the sale of an interest in a global note to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream cash account as of the business day for Euroclear or Clearstream following the DTC settlement date.
DTC, Euroclear and Clearstream have agreed to the above procedures to facilitate transfers of interests in the global notes among participants in those settlement systems. However, the settlement systems are not obligated to perform these procedures and may discontinue or change these procedures at any time. Neither we nor the trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream or their participants or indirect participants of their obligations under the rules and procedures governing their operations.
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Certificated Notes
In a few special situations described below, the book-entry system for the notes will terminate and interests in the global notes will be exchanged for definitive notes in registered form. You must consult your bank, broker or other financial institution to find out how to have your interests in the notes transferred to your name, so that you will be a direct holder.
The special situations for termination of the book-entry system for the notes are:
| • | the depositary for any of the notes represented by a registered global note (1) notifies us that it is unwilling or unable to continue as depositary or clearing system for the global notes or (2) ceases to be a “clearing agency” registered under the Exchange Act, and in either event we are unable to find a qualified replacement for such depositary within 90 days; |
| • | we, in our sole discretion, determine to allow global notes to be exchangeable for definitive notes in registered form; or |
| • | there has occurred and is continuing an event of default with respect to the notes and DTC notifies the trustee of its decision to exchange the global notes for definitive notes in registered form. |
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EXCHANGE OFFER; REGISTRATION RIGHTS
On August 16, 2021, the Company and Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Goldman Sachs & Co. LLC and Huntington Securities, Inc. entered into the Registration Rights Agreement with respect to the Restricted Notes. In the Registration Rights Agreement, the Company agreed, among other things, for the benefit of the holders of the Restricted Notes to use commercially reasonable efforts to (1) file a registration statement on an appropriate registration form with respect to a registered offer to exchange Restricted Notes for Registered Notes, with terms substantially identical in all material respects to such Restricted Notes (except that the Registered Notes will not contain terms with respect to transfer restrictions) and (2) cause the registration statement to be declared effective under the Securities Act by May 13, 2022.
If the SEC declares the registration statement of which this prospectus forms a part effective, the Company will offer the Registered Notes in exchange for the Restricted Notes. The exchange offer will remain open for at least 20 business days (or longer if required by applicable law) after the date we electronically deliver notice of the exchange offer to the holders of the applicable Restricted Notes. For each Restricted Note surrendered to the Company under the exchange offer, the holders of such Restricted Note will receive a Registered Note of equal principal amount. Interest on each Registered Note will accrue from the last interest payment date on which interest was paid on the Restricted Note surrendered in exchange therefor. A holder of registrable securities that participates in the exchange offer will be required to make certain representations to us. We will use commercially reasonable efforts to complete the exchange offer not later than August 16, 2022.
Under existing interpretations of the SEC contained in several no-action letters to third parties, the Registered Notes will be freely transferable after the exchange offer without further registration under the Securities Act, except that any broker-dealer that participates in the exchange offer must deliver a prospectus meeting the requirements of the Securities Act when it resells the Registered Notes. In addition, under applicable interpretations of the staff of the SEC, our affiliates will not be permitted to exchange their Restricted Notes for Registered Notes in the exchange offer.
We will agree to make available, during the period required by the Securities Act, a prospectus meeting the requirements of the Securities Act for use by participating broker-dealers and other persons, if any, with similar prospectus delivery requirements for use in connection with any resale of the Registered Notes. Restricted Notes of not tendered in the exchange offer will bear interest at the rate set forth in “Description of the Registered Notes” with respect to such Restricted Notes and be subject to all the terms and conditions specified in the Indenture, including transfer restrictions, but will not retain any rights under the Registration Rights Agreement after the consummation of the exchange offer.
Our obligations to register the exchange notes will terminate upon the completion of the exchange offer. However, under certain circumstances specified in the registration rights agreement, we may be required to file a shelf registration agreement for a continuous offer in connection with the old notes.
This summary of the provisions of the Registration Rights Agreement does not purport to be complete and is subject to, and is qualified in its entirety to, all the provisions of the Registration Rights Agreement.
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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a general discussion of certain material U.S. federal income tax considerations relating to the exchange of Restricted Notes for Registered Notes in the exchange offer. It does not purport to contain a complete analysis of all the potential tax considerations relating to the exchange. This discussion is limited to holders of Restricted Notes who hold the Restricted Notes as “capital assets” within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the “Code”) (generally, property held for investment). This discussion is based upon the Code, the Treasury Regulations promulgated thereunder, judicial authorities and published positions of the IRS, all as currently in effect, and all of which are subject to change or differing interpretations possibly with retroactive effect, and any such change or differing interpretation could affect the accuracy of the statements and conclusions set forth herein.
This discussion is for general information purposes only and does not address all of the U.S. federal income tax consequences and considerations that may be relevant to a particular holder in light of such holder’s particular facts and circumstances and does not apply to holders that are subject to special treatment under U.S. federal income tax laws, such as, for example, banks or other financial institutions; insurance companies, regulated investment companies, real estate investment trusts or mutual funds; holders liable for the alternative minimum tax; certain former citizens or former long-term residents of the United States; U.S. holders having a “functional currency” other than the U.S. dollar; tax-exempt organizations; dealers in securities or currencies; entities or arrangements treated as partnerships for U.S. federal income tax purposes or other flow-through entities (or investors therein); subchapter S corporations, retirement plans, individual retirement accounts or other tax-deferred accounts; traders in securities that elect to use a mark to market method of accounting; “controlled foreign corporations”; “passive foreign investment companies”; or holders that hold Restricted Notes as part of a straddle, hedge, constructive sale, or conversion transaction or other integrated or risk reduction transaction.
This discussion does not address any tax consequences under U.S. federal tax laws other than those pertaining to income tax, nor does it address any considerations under any state, local or foreign tax laws or under the unearned income Medicare contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010. This discussion also does not address any withholding considerations under the Foreign Account Tax Compliance Act of 2010 (including the Treasury Regulations issued thereunder and intergovernmental agreements entered into pursuant thereto or in connection therewith). No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the tax consequences set forth below.
If a partnership or other entity or arrangement treated as a partnership for U.S. federal income tax purposes holds Restricted Notes, the tax treatment of a person treated as a partner in such partnership for U.S. federal income tax purposes generally will depend upon the status of the partner and the activities of the partnership. Such partnerships and partners in such partnerships should consult their tax advisors about the tax consequences of the exchange to them.
This discussion is for general purposes only. All holders are urged to consult with their tax advisors as to the specific tax consequences to them of the exchange of Restricted Notes for Registered Notes in light of their particular facts and circumstances, including the applicability and effect of any U.S. federal, state, local, foreign or other tax laws.
Consequences of Tendering Restricted Notes
The exchange of Restricted Notes for Registered Notes in the exchange offer will not constitute a taxable exchange for U.S. federal income tax purposes. Accordingly, you will not recognize gain or loss upon the exchange of Restricted Notes for Registered Notes, your basis in the Registered Notes will be the same as your basis in the Restricted Notes surrendered in exchange therefor immediately before the exchange, and your holding period in the Registered Notes will include your holding period for the Restricted Notes exchanged.
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Each broker-dealer that receives Registered Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such Registered Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Registered Notes received in exchange for Restricted Notes that were acquired by such broker-dealer as a result of market-making or other trading activities. The Company has agreed that, for a period of up to 180 days after the expiration date of the exchange offer, if requested by one or more such broker-dealers, the Company will amend or supplement this prospectus in order to expedite or facilitate the disposition of any Registered Notes by any such broker-dealers.
The Company will not receive any proceeds from any sale of Registered Notes by broker-dealers. Registered Notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Registered Notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Registered Notes. Any broker-dealer that resells Registered Notes that were received by it for its own account pursuant to the exchange offer, and any broker or dealer that participates in a distribution of such Registered Notes may be deemed to be an “underwriter” within the meaning of the Securities Act, and any profit on any such resale of Registered Notes and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of 180 days after the expiration time of the exchange offer, the Company will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. The Company has agreed to pay certain expenses incident to the exchange offer (including the expenses of one counsel for the holders of the Registered Notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Registered Notes (including any broker-dealers) against certain liabilities pursuant to the Registration Rights Agreement, including liabilities under the Securities Act.
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The financial statements of Huntington Bancshares Incorporated and management’s assessment of the effectiveness of internal control over financial reporting (which is included in the Report of Management’s Assessment of Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2021 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of TCF as of December 31, 2020 and 2019, and for each of the years in the three-year period ended December 31, 2020, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2020 (which is included in Management’s Report on Internal Control Over Financial Reporting) have been incorporated in this prospectus in reliance upon the reports of KPMG LLP, an independent registered public accounting firm, which reports appear in the Form 8-K of Huntington Bancshares Incorporated dated April 30, 2021 which is incorporated by reference in the Form 8-K/A dated July 29, 2021 which is incorporated by reference in this prospectus, and upon the authority of said firm as experts in accounting and auditing.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” in this prospectus the information in other documents that we file with it, which means that we can disclose important information to you by referring you to those publicly filed documents. The information incorporated by reference herein is considered to be a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information contained in documents filed earlier with the SEC or contained in this prospectus or a prospectus supplement. Accordingly, we incorporate by reference in this prospectus the documents listed below and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the initial registration statement and prior to the effectiveness of the registration statement and after the date of this prospectus and prior to the termination of the offering under this prospectus (excluding in each case information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K unless we specifically state in such Current Report that such information is to be considered “filed” under the Exchange Act, or we incorporate it by reference into a filing under the Securities Act or the Exchange Act):
| 1. | Our Annual Report on Form 10-K for the year ended December 31, 2021, filed on February 18, 2022 (including information specifically incorporated by reference into the Annual Report on Form 10-K from our definitive proxy statement filed on March 10, 2022); |
| 2. | Our Current Report on Form 8-K/A, filed on July 29, 2021 (Film No. 211127909); and |
| 3. | Our Current Report on Form 8-K, filed on January 19, 2022 (Film No. 22546408) and March 14, 2022. |
You should rely only on the information contained or incorporated by reference in this prospectus and in any supplement hereto. We have not authorized any person, including any salesperson or broker, to provide information other than that provided in this prospectus and in any supplement hereto. We have not authorized anyone to provide you with different information. We are not making an offer of the securities in any jurisdiction where the offer is not permitted. You should assume that the information in this prospectus and in any supplement hereto is accurate only as of the date on its cover page and that any information incorporated by reference herein is accurate only as of the date of the document incorporated by reference.
We will provide without charge to each person to whom a copy of this prospectus has been delivered, upon written or oral request, a copy of any or all of the documents we incorporate by reference in this prospectus, other than any exhibit to any of those documents, unless we have specifically incorporated that exhibit by reference into the information this prospectus incorporates. You may request copies by writing or telephoning us at the following address:
Investor Relations
Huntington Bancshares Incorporated
41 South High Street
Columbus, Ohio 43287
Telephone: (614) 480-5676
To obtain timely delivery of any of our filings, agreements or other documents, you must make your request to us no later than , 2022. In the event that we extend the exchange offer, you must submit your request at least five business days before the expiration date of the exchange offer, as extended.
Except as expressly provided above, no other information is incorporated by reference into this prospectus.
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WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-4 (File No. 333- ) under the Securities Act that registers the Registered Notes that will be offered in exchange for the Restricted Notes. The registration statement, including the attached exhibits and schedules, contains additional relevant information about us and the Registered Notes. The rules and regulations of the SEC allow us to omit from this document certain information included in the registration statement.
We are subject to the informational requirements of the Exchange Act and file reports and other information with the SEC. Our SEC filings are available to the public from the SEC’s website at http://www.sec.gov. We also maintain an Internet site at http://www.huntington.com. Our website and the information contained therein or connected thereto shall not be deemed to be incorporated herein, and you should not rely on any such information in making an investment decision. Huntington’s and its subsidiaries’ names, abbreviations thereof, logos, and product and service designators are all either the registered or unregistered trademarks or tradenames of Huntington and its subsidiaries. Names, abbreviations of names, logos, and products and service designators of other companies are either the registered or unregistered trademarks or tradenames of their respective owners.
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HUNTINGTON BANCSHARES INCORPORATED
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 20. | Indemnification of Directors and Officers |
The Maryland General Corporation Law (“MGCL”) permits a Maryland corporation to include in its charter a provision eliminating the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Huntington’s charter contains such a provision, which eliminates such liability to the fullest extent permitted by the MGCL.
Huntington’s charter provides that it shall indemnify its directors to the fullest extent provided by the general laws of the State of Maryland now or hereafter in force, including the advance of expenses subject to procedures provided by such laws, its officers to the same extent it shall indemnify its directors, and its officers who are not directors to such further extent as shall be authorized by the Huntington board of directors and be consistent with Maryland law. Huntington’s bylaws provide that it shall indemnify and advance expenses to (i) its present or former directors and officers and (ii) any individual who, while a director or officer and at the request of Huntington, serves or has served as a director, officer, partner, trustee, member or manager of another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made, or threatened to be made, a party to, or witness in, the proceeding by reason of his or her service in that capacity. Huntington may, with the approval of the Huntington board of directors, provide such indemnification and advance for expenses to an individual who served a predecessor in any of the capacities described above and any employee or agent of Huntington or a predecessor of Huntington. Huntington’s bylaws further provide that director and officer indemnification and expense advance rights include expenses related to being a witness in a proceeding.
Section 2-418 of the MGCL provides, in substance, that a corporation may indemnify any present or former director or officer or any individual who, while a director or officer of the corporation and at the request of the corporation, has served another enterprise as a director, officer, partner, trustee, employee or agent who is made, or threatened to be made, a party to, or witness in, any proceeding by reason of service in that capacity against judgments, penalties, fines, settlements and reasonable expenses actually incurred by the director or officer in connection with the proceeding, unless it is proved that the act or omission of the director or officer (a) was material to the matter giving rise to the proceeding and (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty; (b) the director or officer actually received an improper personal benefit in money, property, or services; or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. Notwithstanding the above, a director or officer may not be indemnified in respect of any proceeding, by or in the right of the corporation, in which such director or officer shall have been adjudged liable to the corporation or in respect of any proceeding charging improper receipt of a personal benefit in which such director or officer shall have been adjudged to be liable to the corporation (except as described below).
Section 2-418 provides that a present or former director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding shall be indemnified against reasonable expenses incurred by the director or officer in connection with the proceeding. A court of appropriate jurisdiction, upon application of a director or officer and such notice as the court shall require, may order indemnification as the court shall deem proper if it determines that a director or officer is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. However, indemnification with respect to any proceeding by or in the right of the corporation, or in which liability shall have been adjudged in the case of a proceeding charging improper personal benefit to the director or officer, shall be limited to expenses.
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The reasonable expenses incurred by a director or officer who is a party to a proceeding shall be paid or reimbursed by Huntington in advance of the final disposition of the proceeding upon its receipt of both a written affirmation by the director or officer of his or her good faith belief that the standard of conduct necessary for indemnification by the corporation has been met, and a written undertaking by or on behalf of the director or officer to repay the amount if it shall be ultimately determined that the standard of conduct has not been met.
The indemnification and advancement of expenses provided or authorized by Section 2-418 are not exclusive of any other rights to which a director or officer may be entitled both as to action in his or her official capacity and as to action in another capacity while holding such office.
Pursuant to Section 2-418, a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or who, while serving in such capacity, is or was at the request of the corporation serving as a director, officer, partner, trustee, employee or agent of another corporation or other enterprise or of an employee benefit plan, against any liability asserted against and incurred by such person in any such capacity or arising out of such person’s position, whether or not the corporation would have the power to indemnify against liability under Section 2-418. A corporation may provide similar protection, including a trust fund, letter of credit or surety bond, which is not inconsistent with Section 2-418. A subsidiary or an affiliate of the corporation may provide the insurance or similar protection.
The foregoing is only a general summary of certain aspects of Maryland law dealing with indemnification of directors and officers and does not purport to be complete. It is qualified in its entirety by reference to the relevant statutes, which contain detailed specific provisions regarding the circumstances under which and the persons for whose benefit indemnification shall or may be made.
Subject to certain exceptions, the directors and officers of Huntington and its affiliates are insured (subject to certain maximum amounts and deductibles) in each policy year because of any claim or claims made against them by reason of their wrongful acts while acting in their capacities as such directors or officers or while acting in their capacities as fiduciaries in the administration of certain of Huntington’s employee benefit programs. Huntington is insured, subject to certain retentions and exceptions, to the extent it shall have indemnified the directors and officers for such loss.
| Item 21. | Exhibits and Financial Statement Schedules |
| Number |
Description |
Method of Filing | ||
| 3.1 | Articles Supplementary of Huntington Bancshares Incorporated, as of January 18, 2019 |
Incorporated by reference to the Annual Report on Form 10-K, filed with the SEC on February 18, 2021 (File No. 001-34073) | ||
| 3.2 | Articles of Restatement of Huntington Bancshares Incorporated, as of January 18, 2019 |
Incorporated by reference to the Annual Report on Form 10-K, filed with the SEC on February 18, 2021 (File No. 001-34073) | ||
| 3.3 | Bylaws of Huntington Bancshares Incorporated, as amended and restated on January 16, 2019 |
Incorporated by reference to the Annual Report on Form 10-K, filed with the SEC on February 18, 2021 (File No. 001-34073) | ||
| 3.4 | Articles Supplementary of Huntington Bancshares Incorporated, as of February 5, 2021 | Incorporated by reference to the Annual Report on Form 10-K, filed with the SEC on February 18, 2021 (File No. 001-34073) | ||
| 3.5 | Articles Supplementary of Huntington Bancshares Incorporated, as of August 5, 2020 | Incorporated by reference to the Annual Report on Form 10-K, filed with the SEC on February 18, 2021 (File No. 001-34073) | ||
| 3.6 | Articles Supplementary of Huntington Bancshares Incorporated, as of May 28, 2020 |
Incorporated by reference to the Annual Report on Form 10-K, filed with the SEC on February 18, 2021 (File No. 001-34073) | ||
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| Number |
Description |
Method of Filing | ||
| 99.1 | Form of Letter of Transmittal | Filed herewith | ||
| 107 | Filing Fee Table | Filed herewith | ||
| Item 22. | Undertakings |
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining liability under the Securities Act of 1933 to any purchaser, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
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(5) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(6) To respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(7) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
(8) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized on March 14, 2022 in the City of Columbus, Ohio.
| HUNTINGTON BANCSHARES INCORPORATED | ||
| By: | /s/ Zachary Wasserman | |
| Zachary Wasserman | ||
| Chief Financial Officer | ||
| (Principal Financial Officer) | ||
Each of the undersigned officers and directors of Huntington Bancshares Incorporated, a Maryland corporation, whose signature appears below constitutes and appoints Stephen D. Steinour, Zachary Wasserman and Jana J. Litsey and each of them, his or her true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this registration statement, including pre-effective and post-effective amendments and otherwise, and to file the same, with all exhibits hereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done, as such person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated below on March 14, 2022:
| Signature |
Title | |
| /s/ Stephen D. Steinour |
Chairman, President, Chief Executive Officer, and Director (Principal Executive Officer) | |
| Stephen D. Steinour | ||
| /s/ Zachary Wasserman |
Chief Financial Officer (Principal Financial Officer) | |
| Zachary Wasserman | ||
| /s/ Nancy E. Maloney |
Executive Vice President, Controller (Principal Accounting Officer) | |
| Nancy E. Maloney | ||
| /s/ Lizabeth Ardisana |
Director | |
| Lizabeth Ardisana | ||
| /s/ Alanna Y. Cotton |
Director | |
| Alanna Y. Cotton | ||
| /s/ Ann B. Crane |
Director | |
| Ann B. Crane | ||
| /s/ Robert S. Cubbin |
Director | |
| Robert S. Cubbin | ||
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| Signature |
Title | |
| /s/ Steven G. Elliott |
Director | |
| Steven G. Elliott | ||
| /s/ Gina D. France |
Director | |
| Gina D. France | ||
| /s/ J. Michael Hochschwender |
Director | |
| J. Michael Hochschwender | ||
| /s/ Richard H. King |
Director | |
| Richard H. King | ||
| /s/ Katherine M. A. Kline |
Director | |
| Katherine M. A. Kline | ||
| /s/ Barbara L. McQuade |
Director | |
| Barbara L. McQuade | ||
| /s/ Richard W. Neu |
Director | |
| Richard W. Neu | ||
| /s/ Kenneth J. Phelan |
Director | |
| Kenneth J. Phelan | ||
| /s/ David L. Porteous |
Director | |
| David L. Porteous | ||
| /s/ Roger J. Sit |
Director | |
| Roger J. Sit | ||
| /s/ Jeffrey L. Tate |
Director | |
| Jeffrey L. Tate | ||
| /s/ Gary Torgow |
Director | |
| Gary Torgow | ||
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Exhibit 5.1
[Letterhead of Wachtell, Lipton, Rosen & Katz]
March 14, 2022
Huntington Bancshares Incorporated
41 South High Street
Columbus, Ohio 43287
Re: Huntington Bancshares Incorporated Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as special counsel to Huntington Bancshares Incorporated, a Maryland corporation (the “Company”), in connection with the registration, pursuant to a registration statement on Form S-4 (the “Registration Statement”), initially filed by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the U.S. Securities Act of 1933, as amended (the “Act”), on March 14, 2022 relating to the proposed offer by the Company to exchange (the “Exchange Offer”) the Company’s outstanding 2.487% Fixed-to-Fixed Subordinated Notes due 2036 (the “Old Notes”) for an equal principal amount of the Company’s registered 2.487% Fixed-to-Fixed Subordinated Notes due 2036 (the “Exchange Notes”).
The Old Notes were issued, and the Exchange Notes will be issued, under the Subordinated Debt Indenture, dated as of December 29, 2005 (the “Base Indenture”), between the Company, as the issuer, and The Bank of New York Mellon Trust Company, N.A. (as successor in interest to JPMorgan Chase Bank, N.A.), as trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture dated as of August 16, 2021, between the Company and the Trustee (the “Second Supplemental Indenture”; together with the Base Indenture, the “Indenture”).
The Company is proposing the Exchange Offer in accordance with the terms of a Registration Rights Agreement with respect to the Old Notes by and among the Company, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, and Huntington Securities, Inc., dated as of August 16, 2021 (the “Registration Rights Agreement”).
In rendering the opinions expressed in this letter, we have examined the Registration Statement, the Indenture, the form of the Exchange Notes, and originals or copies certified or otherwise identified to our satisfaction of such other documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter. The Exchange Notes and the Indenture are referred to herein as the “Transaction Documents.” We have also conducted such investigations of fact and law as we have deemed necessary or advisable for purposes of this letter. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies and the legal capacity of all individuals executing such documents. As to any facts material to the opinions expressed below, we have, with your consent, relied upon the statements, certificates and representations of officers and other representatives of parties to the Transaction Documents and of the Company. We have also assumed (i) the truth, accuracy and completeness of the information, representations and warranties contained in the agreements, records, documents, instruments and certificates we have reviewed, (ii) that each of the Transaction Documents constitutes the valid and binding obligation of each party thereto, enforceable against them in accordance with its terms (other than as expressly covered by our opinions below in respect of the Company) and (iii) all Exchange Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the preliminary prospectus, dated the date hereof, included in the Registration Statement (the “Prospectus”). We have also assumed that the terms of the Exchange Notes have been established so as not to, and that the execution, delivery and performance of the Transaction Documents by each party thereto do not (x) contravene its respective certificate or articles of incorporation, limited liability company agreement, bylaws or other organizational documents, (y) violate any law, rule or regulation applicable to it or any judicial or regulatory order
of decree of any governmental authority, or (z) result in any conflict with, default under or violation or breach of any agreement or document binding on it. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it.
We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, the Transaction Documents or the transactions governed by the Transaction Documents, in each case as in effect on the date hereof (the “Relevant Laws”). Without limiting the generality of the foregoing definition of Relevant Laws, the term “Relevant Laws” does not include any law, rule or regulation that is applicable to the Company and the Transaction Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Transaction Documents or any of its affiliates due to the specific assets or business of such party or such affiliate.
Insofar as the opinions expressed herein relate to or are dependent upon matters governed by the laws of the State of Maryland, we have relied upon the opinion dated on or about the date hereof of Venable LLP, special counsel to the Company, which opinion is being filed as an exhibit to the Registration Statement.
Based upon the foregoing, and subject to the qualifications set forth in this letter, it is our opinion that when (i) the Registration Statement has become effective under the Act, (ii) the Old Notes have been exchanged in the manner described in the Prospectus, (iii) the Exchange Notes have been duly executed, authenticated, issued and delivered by the Company in accordance with the terms of the Indenture, against receipt of the Old Notes surrendered in exchange therefor, (iv) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and (v) applicable provisions of “blue sky” laws have been complied with, the Exchange Notes proposed to be issued pursuant to the Exchange Offer will constitute valid and legally binding obligations of the Company, except as may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights or remedies generally and by general equitable principles (whether considered in a proceeding in equity or at law).
The opinion set forth above is subject to the effects of (a) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars; (b) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States; and (c) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed-upon exchange, (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration, or (vi) limit the waiver of rights under usury laws. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. We express no opinion as to the effect of Section 210(p) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended.
The opinions expressed herein are also subject to the following qualifications and comments:
| a) | Any provisions of the Transaction Documents that permit any party thereto to take action or make determinations, or to benefit from indemnities and similar undertakings of any party to the Transaction Documents, may be subject to a requirement that such action be taken or such determinations be made, and any action or inaction by such party that may give rise to a request for payment under such an undertaking be taken or not taken, on a reasonable basis and in good faith. |
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| b) | We express no opinion as to (i) whether a federal or state court outside New York would give effect to any choice of law provided for in the Transaction Documents, (ii) any provisions of the Transaction Documents that relate to the subject matter jurisdiction of the federal or state courts of a particular jurisdiction to adjudicate any controversy related to the Transaction Documents or the transactions contemplated thereby, (iii) any waiver of inconvenient forum set forth in the Transaction Documents or (iv) any waiver of jury trial found in the Transaction Documents. |
We hereby consent to the filing of a copy of this letter as an exhibit to the Registration Statement and to the use of our name in the Prospectus under the caption “Legal Matters.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act and the rules and regulations thereunder. This letter speaks only as of its date, and we undertake no (and hereby disclaim any) obligation to update this letter.
| Very truly yours, |
| /s/ Wachtell, Lipton, Rosen & Katz |
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Exhibit 5.2
[LETTERHEAD OF VENABLE LLP]
March 14, 2022
Huntington Bancshares Incorporated
41 South High Street
Columbus, Ohio 43287
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have served as Maryland counsel to Huntington Bancshares Incorporated, a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the Company’s offer (such offer, as it may from time to time be amended, supplemented or extended, the “Exchange Offer”) to exchange any and all of the Company’s outstanding unregistered 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036 (the “Old Notes”), for the Company’s registered 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036 (the “New Notes”), pursuant to the above-referenced Registration Statement and all amendments thereto, if any (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement, and the related form of prospectus included therein, substantially in the form in which it was transmitted to the Commission under the 1933 Act;
2. The charter of the Company, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. Resolutions adopted by the Board of Directors of the Company, relating to, among other matters, the Exchange Offer and the registration and issuance of the New Notes in exchange for the Old Notes, certified as of the date hereof by an officer of the Company;
5. The Subordinated Debt Indenture, dated as of December 29, 2005, as amended and supplemented by the Second Supplemental Indenture, dated as of August 16, 2021, by and between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee;
Huntington Bancshares Incorporated
March 14, 2022
Page 2
7. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
8. A certificate executed by an officer of the Company, dated as of the date hereof; and
9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation, duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the New Notes by the Company has been duly authorized by the Company.
Huntington Bancshares Incorporated
March 14, 2022
Page 3
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or any other state law. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. Wachtell Lipton Rosen & Katz, counsel to the Company, may rely on this opinion in connection with their opinion of even date herewith. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP
060522-353633
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of Huntington Bancshares Incorporated of our report dated February 18, 2022 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Huntington Bancshares Incorporated’s Annual Report on Form 10-K for the year ended December 31, 2021. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Columbus, Ohio
March 14, 2022
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated February 26, 2021, with respect to the consolidated financial statements of TCF Financial Corporation, and the effectiveness of internal control over financial reporting, which reports appear in the Form 8-K of Huntington Bancshares Incorporated dated April 30, 2021 which is incorporated by reference in the Form 8-K/A dated July 29, 2021 which is incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.
Detroit, Michigan
March 14, 2022
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| California | 95-3571558 | |
| (State of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 333 South Hope Street, Suite 2525 Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) | |
HUNTINGTON BANCSHARES INCORPORATED
(Exact name of obligors as specified in their charters)
| Maryland | 31-0724920 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| 41 South High Street Columbus, Ohio |
43287 | |
| (Address of registrants’ principal executive offices) | (Zip Code) | |
Debt securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the Trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Comptroller of the Currency United Stated Department of the Treasury |
Washington, D.C. 20219 | |
| Federal Reserve Bank of San Francisco |
San Francisco, CA 94105 | |
| Federal Deposit Insurance Corporation |
Washington, D.C. 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor and Guarantor. |
If the obligor or guarantor is an affiliate of the trustee, describe each such affiliation.
None.
| 3-15. | Pursuant to General Instruction B of the Form T-1, no responses are included for Items 3-15 of this Form T-1 because, to the best of the Trustee’s knowledge, the obligor or the guarantor is not in default under any Indenture for which the Trustee acts as Trustee and the Trustee is not a foreign trustee as provided under Item 15. |
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).
1. A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).
2. A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).
3. A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).).
4. A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).
5. The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).
6. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Los Angeles, and State of California, on March 14, 2022.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ Mark A. Golder | |||
| Name: | Mark A. Golder | |||
| Title: | Vice President | |||
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business December 31, 2021, published in accordance with Federal regulatory authority instructions.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
1,603 | |||
| Interest-bearing balances |
397,503 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
51,107 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
19,483 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
90,124 | |||
|
|
|
|||
| Total assets |
$ | 1,416,133 | ||
|
|
|
|||
| Dollar amounts in thousands |
||||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
876 | |||
| Noninterest-bearing |
876 | |||
| Interest-bearing |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
0 | |||
| Trading liabilities |
0 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
0 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
275,893 | |||
| Total liabilities |
276,769 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
324,786 | |||
| Not available |
||||
| Retained earnings |
813,129 | |||
| Accumulated other comprehensive income |
449 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,139,364 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,139,364 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,416,133 | |||
|
|
|
|||
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
Matthew J. McNulty ) CFO
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio I. Portuondo, President | ) | |||
| Michael P. Scott, Managing Director | ) | Directors (Trustees) | ||
| Kevin P. Caffrey, Managing Director | ) |
Exhibit 99.1
HUNTINGTON BANCSHARES INCORPORATED
LETTER OF TRANSMITTAL
OFFER TO EXCHANGE
$560,516,000 PRINCIPAL AMOUNT OF ITS
2.487% FIXED-TO-FIXED RATE SUBORDINATED NOTES DUE 2036, THE ISSUANCE OF WHICH HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
FOR
AN EQUAL PRINCIPAL AMOUNT OF
2.487% FIXED-TO-FIXED RATE SUBORDINATED NOTES DUE 2036
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON [ ], 2022 (THE “EXPIRATION DATE”) UNLESS EXTENDED.
The Exchange Agent is:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
By Hand, Registered, Certified or
Express Mail or by Overnight Courier:
The Bank of New York Mellon Trust Company, N.A.,
as Exchange Agent
c/o The Bank of New York Mellon Trust Company,
N.A. Corporate Trust Operations –
Reorganization Unit
2001 Bryan Street, 10th Floor
Dallas, TX 75201
Attn: Joseph Felicia
For Information or Confirmation by Email or Telephone:
Ct_Reorg_Unit_Inquiries@bnymellon.com
315-414-3349
Delivery of this Letter of Transmittal to an address other than as set forth above will not constitute a valid delivery. Only hard copies of this Letter of Transmittal or presentations via The Depository Trust Company’s (“DTC”) Automated Tender Offer Program (“ATOP”) will be accepted.
Questions and requests for assistance or for additional copies of the Prospectus or of the Letter of Transmittal and or related materials must be directed to the Exchange Agent by calling 315-414-3349.
The undersigned acknowledges receipt of the Prospectus dated [•], 2022 (the “Prospectus”) of Huntington Bancshares Incorporated (the “Issuer”), and this Letter of Transmittal (the “Letter of Transmittal”), which together describe the Issuer’s offer (the “Exchange Offer”) to exchange all of its outstanding 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036 (CUSIP No. 446150 AW4, U44750 AA2 and ISIN US446150AW47, USU44750AA27) (the “Restricted Notes”), issued by the Issuer on August 16, 2021 and September 8, 2021 in private offers, that are validly tendered and not validly withdrawn for an equal principal amount of the respective series of the Issuer’s 2.487% Fixed-to-Fixed Rate Subordinated Notes due 2036 (CUSIP No. 446150 AX2 and ISIN No. US446150AX20) (the “Registered Notes”) the offer of which has been registered under the Securities Act of 1933, as amended (the “Securities Act”). The Issuer is registering the Exchange Offer in reliance on the position of the staff of the U.S. Securities and Exchange Commission (the “Staff”) enunciated in Exxon Capital Holdings Corporation (April 13, 1989), Morgan Stanley & Co. Incorporated (June 5, 1991) and Shearman & Sterling (July 2, 1993).
The terms of the Registered Notes to be issued in the Exchange Offer are substantially identical in all material respects to the Restricted Notes, except that the Registered Notes will not be subject to restrictions on transfer. The Issuer is not making the Exchange Offer to holders of the Restricted Notes in any jurisdiction in which the Exchange Offer or the acceptance of the Exchange Offer would not be in compliance with the securities or blue sky laws of such jurisdiction. Nor will the Issuer also accept surrenders for exchange from holders of the Restricted Notes in any jurisdiction in which the Exchange Offer or the acceptance of the Exchange Offer would not be in compliance with the securities or blue sky laws of such jurisdiction.
Capitalized terms used but not defined herein shall have the same meaning given them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED. QUESTIONS RELATING TO THE PROCEDURE FOR TENDERING AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
2
The undersigned has checked the appropriate boxes below and signed this Letter of Transmittal to indicate the action the undersigned desires to take with respect to the Exchange Offer.
PLEASE READ THE ENTIRE
LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW.
List below the Restricted Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, the aggregate principal amounts should be listed on a separate signed schedule affixed hereto.
| DESCRIPTION OF RESTRICTED NOTES TENDERED HEREWITH | ||||||
|
Name(s) and Address(es) of Registered Holder(s) (Please fill in) |
Aggregate Principal Amount Restricted Notes* |
Principal Amount Tendered** | ||||
| Total: | ||||||
| * | Need not be completed by book-entry holders. |
| ** | Unless otherwise indicated, the holder will be deemed to have tendered the full aggregate principal amount represented by such Restricted Notes. See instruction 2. |
Unless the context otherwise requires, the term “holder” for purposes of this Letter of Transmittal means any person in whose name Restricted Notes are registered or any other person who has obtained a properly completed bond power from the registered holder or any person whose Restricted Notes are held of record by DTC.
| ☐ | CHECK HERE IF REGISTERED NOTES ARE TO BE ISSUED TO A PERSON OTHER THAN THE PERSON SIGNING THIS LETTER OF TRANSMITTAL: |
Name:
Address:
| ☐ | CHECK HERE IF REGISTERED NOTES ARE TO BE DELIVERED TO AN ADDRESS DIFFERENT FROM THAT LISTED ELSEWHERE IN THIS LETTER OF TRANSMITTAL: |
Name:
Address:
| ☐ | CHECK HERE IF YOU ARE A BROKER-DEALER THAT ACQUIRED RESTRICTED NOTES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. |
Name:
Address:
3
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Registered Notes. If the undersigned is a broker-dealer that will receive Registered Notes for its own account in exchange for Restricted Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Registered Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. A broker-dealer may not participate in the Exchange Offer with respect to Restricted Notes acquired other than as a result of market-making activities or other trading activities. Any holder who is an “affiliate” of the Issuer or who has an arrangement or understanding with respect to the distribution of the Registered Notes to be acquired pursuant to the Exchange Offer, or any broker-dealer that purchased Restricted Notes from the Issuer to resell pursuant to Rule 144A under the Securities Act or any other available exemption under the Securities Act must comply with the registration and prospectus delivery requirements under the Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Issuer the principal amount of the Restricted Notes indicated above. Unless otherwise indicated above, the undersigned will be deemed to have tendered the full aggregate principal amount represented by the Restricted Notes. Subject to, and effective upon, the acceptance for exchange of any portion of the Restricted Notes tendered herewith in accordance with the terms and conditions of the Exchange Offer (including, if the Exchange Offer is extended or amended, the terms and conditions of any such extension or amendment), the undersigned hereby exchanges, assigns and transfers to, or upon the order of, the Issuer all right, title and interest in and to such Restricted Notes as are being tendered herewith. The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the Exchange Agent also acts as the agent of the Issuer, in connection with the Exchange Offer) to cause the Restricted Notes to be assigned, transferred and exchanged.
The undersigned represents and warrants that it has full power and authority to tender, exchange, assign and transfer the Restricted Notes and to acquire Registered Notes issuable upon the exchange of such tendered Restricted Notes, and that, when the same are accepted for exchange, the Issuer will acquire good and unencumbered title to the tendered Restricted Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned also warrants that it will, upon request, execute and deliver any additional documents deemed by the Exchange Agent or the Issuer to be necessary or desirable to complete the exchange, assignment and transfer of the tendered Restricted Notes or transfer ownership of such Restricted Notes on the account books maintained by the book-entry transfer facility. The undersigned further agrees that acceptance of any and all validly tendered Restricted Notes by the Issuer and the issuance of Registered Notes in exchange therefor shall constitute performance in full by the Issuer of its obligations under the Registration Rights Agreement dated as of August 16, 2021 (the “Registration Rights Agreement”), between the Issuer, Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Goldman Sachs & Co. LLC and Huntington Securities, Inc., and that the Issuer shall have no further obligations or liabilities thereunder. The undersigned will comply with its obligations under the Registration Rights Agreement.
The undersigned understands that tenders of Restricted Notes pursuant to any one of the procedures described in the Prospectus and in the instructions attached hereto will, upon the Issuer’s acceptance for exchange of such tendered Restricted Notes, constitute a binding agreement between the undersigned and the Issuer upon the terms and subject to the conditions of the Exchange Offer. The undersigned recognizes that, under circumstances set forth in the Prospectus, the Issuer may not be required to accept for exchange any of the Restricted Notes.
By tendering Restricted Notes and executing this Letter of Transmittal, the undersigned represents that (i) the holder is not an “affiliate” of the Issuer or CPCo within the meaning of Rule 405 under the Securities Act or, if such an affiliate, will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable in connection with the resale of the Registered Notes; (ii) the holder is not engaging in and does not intend to engage in, and has no arrangement or understanding with any person to participate in, the distribution (within the meaning of the Securities Act) of the Registered Notes in violation of the provisions of the Securities Act; (iii) the holder is acquiring any Registered Notes to be received by it in its ordinary course of business; and (iv) if the holder is a broker-dealer that will receive the Registered Notes for its own account in exchange for the Restricted Notes that were acquired as a result of market-making or other trading activities, such holder will deliver a prospectus (or, to the extent permitted by law, make available a prospectus to purchasers) meeting the requirements of the Securities Act in connection with any resales of the Registered Notes. If the undersigned or the
4
person receiving such Registered Notes, whether or not such person is the undersigned, is a broker-dealer that will receive Registered Notes for its own account in exchange for Restricted Notes that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Registered Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
The undersigned understands that all resales of the Registered Notes must be made in compliance with applicable state securities or blue sky laws. If a resale does not qualify for an exemption from these laws, the undersigned acknowledges that it may be necessary to register or qualify the Registered Notes in a particular state or to make the resale through a licensed broker-dealer in order to comply with these laws. The undersigned further understands that the Issuer assumes no responsibility regarding compliance with state securities or blue sky laws in connection with resales.
Any holder of Restricted Notes using the Exchange Offer to participate in a distribution of the Registered Notes (i) cannot rely on the position of the Staff of the Securities and Exchange Commission enunciated in its interpretive letter with respect to Exxon Capital Holdings Corporation (April 13, 1989) or similar interpretive letters and (ii) must comply with the registration and prospectus requirements of the Securities Act in connection with a secondary resale transaction.
All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as stated in the Prospectus, this tender is irrevocable but tendered Restricted Notes may be withdrawn at any time prior to the Expiration Date in accordance with the terms of this Letter of Transmittal.
All Registered Notes delivered in exchange for tendered Restricted Notes and any Restricted Notes delivered herewith but not exchanged, in each case if registered in the name of the undersigned, shall be delivered to the undersigned at the address shown below the signature of the undersigned.
The undersigned, by completing the box entitled “Description of Restricted Notes Tendered Herewith” above and signing this letter, will be deemed to have tendered the Restricted Notes as set forth in such box.
5
TENDERING HOLDER(S) SIGN HERE
(Complete accompanying IRS Form W-9 or IRS Form W-8, as applicable)
Must be signed by registered holder(s) exactly as name(s) appear(s) on Registered Notes hereby tendered or in whose name Registered Notes are registered on the books of DTC or one of its participants, or by any person(s) authorized to become the registered holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, please set forth the full title of such person. See Instruction 3.
| (Signature(s) of Holder(s)) |
| Date |
| Name(s) |
| (Please Print) |
| Capacity (full title) |
| Address |
| (Including Zip Code) |
| Daytime Area Code and Telephone No. |
| Taxpayer Identification No. |
| GUARANTEE OF SIGNATURE(S) |
| (If Required—See Instruction 3) |
| Authorized Signature |
| Dated |
| Name |
| Title |
| Name of Firm |
| Address of Firm |
| (Include Zip Code) |
| Area Code and Telephone No. |
6
| SPECIAL ISSUANCE INSTRUCTIONS (See Instructions 3 and 4) (Complete accompanying IRS Form W-9 or IRS Form W-8, as applicable)
To be completed ONLY if Registered Notes or Restricted Notes not tendered are to be issued in the name of someone other than the registered holder of the Restricted Notes whose name(s) appear(s) above.
Issue: ☐ Restricted Notes not tendered to:
☐ Registered Notes to:
Name(s): (Please Print)
Address:
(Including Zip Code)
Daytime Area Code and Telephone No.
Taxpayer Identification No. |
| SPECIAL DELIVERY INSTRUCTIONS (See Instructions 3 and 4)
To be completed ONLY if Registered Notes or Restricted Notes not tendered are to be delivered to the registered holder(s) at an address other than that shown above.
Deliver: ☐ Restricted Notes not tendered to:
☐ Registered Notes to:
Name(s):
Address:
(Including Zip Code)
Daytime Area Code and Telephone No.
Taxpayer Identification No. |
7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of this Letter of Transmittal.
A holder of Restricted Notes may tender the same by (i) properly completing and signing this Letter of Transmittal and delivering the same, together with the Restricted Notes being tendered and any required signature guarantees and any other documents required by this Letter of Transmittal, to the Exchange Agent at its address set forth above on or prior to the Expiration Date or (ii) complying with the procedure for book-entry transfer described below.
Holders of Restricted Notes may tender Restricted Notes by book-entry transfer by crediting the Restricted Notes to the Exchange Agent’s account at DTC in accordance with ATOP and by complying with applicable ATOP procedures with respect to the Exchange Offer. DTC participants that are accepting the Exchange Offer should transmit their acceptance to DTC, which will edit and verify the acceptance and execute a book-entry delivery to the Exchange Agent’s account at DTC. DTC will then send a computer-generated message (an “Agent’s Message”) to the Exchange Agent for its acceptance in which the holder of the Restricted Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter of Transmittal or the DTC participant confirms on behalf of itself and the beneficial owners of such Restricted Notes all provisions of this Letter of Transmittal (including any representations and warranties) applicable to it and such beneficial owners as fully as if it had completed the information required herein and executed and transmitted this Letter of Transmittal to the Exchange Agent. Delivery of the Agent’s Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participants identified in the Agent’s Message.
The method of delivery of this Letter of Transmittal, the Restricted Notes and any other required documents is at the election and risk of the holder, and except as otherwise provided below, the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If such delivery is by mail, it is suggested that registered mail with return receipt requested, properly insured, be used. In all cases, sufficient time should be allowed to permit timely delivery. No Restricted Notes or Letters of Transmittal should be sent to the Issuer. The Issuer reserves the right to reject any particular Restricted Note not properly tendered, or any acceptance that might, in the Issuer’s judgment, be unlawful. The Issuer also reserves the right to waive any defects or irregularities with respect to the form of, or procedures applicable to, the tender of any particular Restricted Note before the expiration date. Unless waived, any defects or irregularities in connection with tenders of Restricted Notes must be cured before the expiration date.
The Exchange Agent must receive the book-entry confirmation, together with this properly completed and duly executed Letter of Transmittal or Agent’s Message with any required signature guarantees and any other documents required by this Letter of Transmittal, prior to the Expiration Date, all as provided in the Prospectus.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders, by execution of this Letter of Transmittal, shall waive any right to receive notice of the acceptance of the Restricted Notes for exchange.
2. Partial Tenders (not applicable to holders that tender by book-entry transfer); Withdrawals.
If less than the entire principal amount of Restricted Notes is tendered, the tendering holder must fill in the aggregate principal amount of Restricted Notes tendered in the box entitled “Description of Restricted Notes Tendered Herewith.” All Restricted Notes delivered to the Exchange Agent will be deemed to have been tendered unless otherwise clearly indicated.
If not yet accepted, a tender pursuant to the Exchange Offer may be withdrawn prior to the Expiration Date.
8
To be effective with respect to the tender of Restricted Notes, a written notice of withdrawal must specify the name of the person who tendered the Restricted Notes to be withdrawn, identify the Restricted Notes to be withdrawn (including the principal amount of such Restricted Notes and, if applicable, the registration numbers and total principal amount of such Restricted Notes) and, where certificates for Restricted Notes have been transmitted, specify the name in which such Restricted Notes were registered if different from that of the withdrawing holder. Any such notice of withdrawal must also be signed by the person having tendered the Restricted Notes to be withdrawn in the same manner as the original signature on the letter of transmittal by which these Restricted Notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer sufficient to permit the trustee for the Restricted Notes to register the transfer of these Restricted Notes into the name of the person having made the original tender and withdrawing the tender and, if applicable because the Restricted Notes have been tendered through the book-entry procedure, specify the name and number of the participant’s account at DTC to be credited if different than that of the person having tendered the Restricted Notes to be withdrawn.
If Restricted Notes have been delivered or otherwise identified to the Exchange Agent, then, prior to the release of such Restricted Notes, the withdrawing holder must also submit the serial numbers of the particular securities to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an Eligible Guarantor Institution (as defined below) unless such holder is an Eligible Guarantor Institution.
If Restricted Notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Restricted Notes and otherwise comply with the procedures of such facility. The Issuer will determine all questions as to the validity, form and eligibility (including time of receipt) of such notices, and the Issuer’s determination shall be final and binding on all parties. The Issuer will deem any Restricted Notes so withdrawn not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Restricted Notes that have been tendered for exchange but that are not exchanged for any reason will be returned to their holder without cost to the holder (or, in the case of Restricted Notes tendered by book-entry transfer into the Exchange Agent’s account of DTC according to the procedures described above, such Restricted Notes will be credited to an account maintained with DTC for Restricted Notes) promptly after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Restricted Notes may be retendered by following one of the procedures described under “Procedures for Tendering the Restricted Notes” in the Prospectus at any time prior to the expiration time.
3. Signature on this Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures.
If this Letter of Transmittal is signed by the registered holder(s) of the Restricted Notes tendered hereby, the signature must correspond with the name(s) as written on the face of the certificates without alteration, enlargement or any change whatsoever. If any of the Restricted Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
If a number of Restricted Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of Restricted Notes.
When this Letter of Transmittal is signed by the registered holder or holders (which term, for the purposes described herein, shall include the book-entry transfer facility whose name appears on a security listing as the owner of the Restricted Notes) of Restricted Notes listed and tendered hereby, no endorsements of certificates or separate written instruments of transfer or exchange are required.
If this Letter of Transmittal is signed by a person other than the registered holder or holders of the Restricted Notes listed, such Restricted Notes must be endorsed or accompanied by separate written instruments of transfer or exchange in form satisfactory to the Issuer and duly executed by the registered holder, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the Restricted Notes.
If this Letter of Transmittal, any certificates or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Issuer, proper evidence satisfactory to the Issuer of their authority so to act must be submitted.
Endorsements on certificates or signatures on separate written instruments of transfer or exchange required by this Instruction 3 must be guaranteed by an Eligible Guarantor Institution.
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Signatures on this Letter of Transmittal must be guaranteed by an Eligible Guarantor Institution, unless Restricted Notes are tendered: (i) by a holder who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on this Letter of Transmittal; or (ii) for the account of an Eligible Guarantor Institution. In the event that the signatures in this Letter of Transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, such guarantees must be by an Eligible Guarantor Institution which is a member of a firm of a registered national securities exchange or of the Financial Industry Regulatory Authority, a commercial bank or trust company having an office or correspondent in the United States or another “eligible guarantor institution” within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (an “Eligible Guarantor Institution”). If Restricted Notes are registered in the name of a person other than the signer of this Letter of Transmittal, the Restricted Notes surrendered for exchange must be endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange, in satisfactory form as determined by the Issuer, in its sole discretion, duly executed by the registered holder with the signature thereon guaranteed by an Eligible Guarantor Institution.
4. Special Issuance and Delivery Instructions.
Tendering holders should indicate, as applicable, the name and address to which the Restricted Notes not exchanged are to be issued or delivered, if different from the name or address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification number of the person named must also be indicated and, as described in Instruction 8, a duly completed IRS Form W-9 or IRS Form W-8, as applicable, must be provided. Holders tendering Restricted Notes by book-entry transfer may request that Restricted Notes not exchanged be credited to such account maintained at the book-entry transfer facility as such holder may designate.
5. Transfer Taxes.
If Restricted Notes for principal amounts not tendered or accepted for exchange are to be registered or issued in the name of any person other than the registered holder of the Restricted Notes tendered, or if tendered Restricted Notes or Registered Notes are to be registered in the name of any person other than the person signing this Letter of Transmittal, or if a transfer tax is imposed for any other reason, the amount of any such transfer taxes (whether imposed on the registered holder or any other person) will be payable by the applicable holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such applicable holder.
6. Waiver of Conditions.
The Issuer reserves the absolute right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus.
7. Taxpayer Information; IRS Form W-9; IRS Form W-8.
Under U.S. federal income tax law, a tendering holder whose Restricted Notes are accepted for exchange for Registered Notes may be subject to backup withholding on reportable payments made on the Registered Notes unless the holder provides the Exchange Agent, Issuer, or other payor with its correct taxpayer identification number (“TIN”) and certain other information on Internal Revenue Service (“IRS”) Form W-9, which is provided below, or otherwise establishes an exemption. If the Exchange Agent, Issuer or other payor is not provided with the correct TIN or an adequate basis for an exemption, a holder may be subject to a penalty imposed by the IRS, and backup withholding (currently, at a rate of 24%) may apply to any reportable payments on the Registered Notes made to such holder. Such reportable payments generally will be subject to information reporting, even if the Exchange Agent, Issuer or other payor is provided with a TIN. Backup withholding is not an additional tax. Rather, the U.S. federal income tax liability of a person subject to backup withholding will be reduced by the amount withheld. If withholding results in an overpayment of taxes, a refund may be obtained, provided that the required information is timely provided to the IRS.
To prevent backup withholding on reportable payments made on the Registered Notes, each holder that is a “United States person” for U.S. federal income tax purposes should provide a properly completed and executed IRS Form W-9. Please see the instructions to the enclosed IRS Form W-9 for further information.
Certain holders (including, among others, generally all corporations and certain non-U.S. persons) are not subject to backup withholding. Exempt U.S. holders may establish their exempt status on IRS Form W-9. A non-U.S. holder may qualify as an exempt recipient by submitting a properly completed IRS Form W-8BEN, Form W-8BEN-E, W-8ECI, W-8EXP or W-8IMY, as the case may be, signed under penalties of perjury, attesting to that holder’s exempt status. The applicable IRS Form W-8 can be obtained from the IRS website at www.irs.gov.
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9. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number set forth above. In addition, all questions relating to the Exchange Offer, as well as requests for assistance or additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number indicated above.
IMPORTANT: This Letter of Transmittal (together with Restricted Notes or confirmation of book-entry transfer and all other required documents) must be received by the Exchange Agent on or prior to the Expiration Date.
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Form W-9 (Rev. October 2018) Department of the Treasury Internal Revenue Service Request for Taxpayer Identification Number and Certification â–ºGo to www.irs.gov/FormW9 for instructions and the latest information. Give Form to the requester. Do not send to the IRS. Print or type See Specific Instructions on page 3. 1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank. 2 Business name/disregarded entity name, if different from above 3 Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the following seven boxes. ï,£ Individual/sole proprietor or ï,£ C Corporation ï,£ S Corporation ï,£ Partnership ï,£ Trust/estate single-member LLC ï,£ Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=partnership) â–º Note. Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC if the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is another LLC that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that is disregarded from the owner should check the appropriate box for the tax classification of its owner. ï,£ Other (see instructions) â–º 4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3): Exempt payee code (if any) Exemption from FATCA reporting code (if any) (Applies to accounts maintained outside the U.S.) 5 Address (number, street, and apt. or suite no.) See instructions. Requester’s name and address (optional) 6 City, state, and ZIP code 7 List account number(s) here (optional) Part I Taxpayer Identification Number (TIN) Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later. Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. Social security number – or Employer identification number Part II Certification Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and 2. I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and 3. I am a U.S. citizen or other U.S. person (defined below); and 4. The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later. Sign Here Signature of U.S. person â–º Date General Instructions Section references are to the Internal Revenue Code unless otherwise noted. Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9. Purpose of Form An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following. • Form 1099-INT (interest earned or paid) • Form 1099-DIV (dividends, including those from stocks or mutual funds) • Form 1099-MISC (various types of income, prizes, awards, or gross proceeds) • Form 1099-B (stock or mutual fund sales and certain other transactions by brokers) • Form 1099-S (proceeds from real estate transactions) • Form 1099-K (merchant card and third party network transactions) • Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition) • Form 1099-C (canceled debt) • Form 1099-A (acquisition or abandonment of secured property) Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN. If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.
Form W·9 (Rev. 10·2018) Page 2 By signing the filled-out form, you: Ex8111ple. Article 20 of the U.S.·China income tax treaty allows an 1. Certify that the TIN you are giving is correct (or you are waiting for a exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this number to be issued), student will become a resident alien for tax purposes if his or her stay in 2. Certify that you are not subject to backup withholding, or the United States exceeds 5 calendar years. However, paragraph 2 of 3. Claim exemption from backup withholding if you are a u.s. exempt the first Protocol to the U.S.-China treaty (dated April30, 1984) allows payee. If applicable, you are also certify ing that as a U.S. person, your the provisions of Article 20 to continue to apply even after the Chinese allocable share of any partnership income from a U.S. trade or business student becomes a resident alien of the United States. A Chinese is not subject to the withholding tax on foreign partners’ share of student who qualifies for this exception (under paragraph 2 of the first effectively connected income, and protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form 4. Certify that FATCA code(s) entered on this form (If any) indicating W-9 a statement that includes the information described above to that you are exempt from the FATCA reporting, is correct. See WIJat is support that exemption. FATCA reponing, later, for further information. Note: If you are a U.S. person and a requester gives you a form other If you are a nonresident alien or a foreign entity, give the requester th e appropriate completed Form W-8 or Form 8233. than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9. Definition of a U.S. person. For federal tax purposes, you are Backup Withholding considered a U.S. person if you are: What is backup withholding? Persons making certain payrments to you • An individual who is a U.S. citizen or U.S. resident alien; must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be • A partnership. corporation, company, or association created or subject to backup withholding include interest, tax-exempt interest, organized in the United States or under the laws of the United States: dividends, broker and barter exchange transactions, rents, royalties, • An estate (other than a foreign estate); or nonemployee pay, payments made in settlement of payment card and • A domestic trust (as defined in Regulations section 301.7701-7). third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup Special rules for partnerships. Partnerships that conduct a trade or withholding. business in the United States are generally required to pay a withholding You will not be subject to backup withholding on payments you tax under section 1446 on any foreign partners’ share of effectively receive if you give the requester your correct TIN, make the proper connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 certifications, and report all your taxable interest and dividends on your require a partnership to presume that a partner is a foreign person, and tax return. pay the section 1446 withholding tax. Tlherefore, if you are a U.S. person Payments you receive will be subject to backup withholding if: that is a partner in a partnership conducting a trade or business in the 1. You do not fumish your TIN to the requester, United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of 2 . You do not certify your TIN when require.d (see the instructions for partnership income. Part II for details), 3 . The IRS tells the requester that you furnished an incorrect TIN, In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding 4. The IRS tells you that you are subject to backup withholding withholding on its allocable share of net income from the partnership because you did not report all your interest and dividends on your tax conducting a trade or business in the United States. retum (for reportable interest and dividends only), or • In the case of a disregarded entity witih a U.S. owner, the U.S. owner 5. You do not certify to the requester that you are not subject to of the disregarded entity and not the entity; backup withholding under 4 above (for reportable interest and dividend • In the case of a grantor trust with a U.S. grantor or other U.S. owner. accounts opened after 1983 only). generally, the U.S. grantor or other U.S. owner of the grantor trust and Certain payees and payments are exempt from backup withholding. not the trust; and See Exempt payee code, later, and the separate 1nstn1ctions for the Requester of Form W-9 for more information. • In the case of a U.S. trust (other than a grantor trust). the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust. Also see Special 1U/es for partneiShips, earlier. Foreign person. If you are a foreign person or th e U.S. branch of a What is FATCA Reporting? foreign bank that has elected to be treated as a u.s. person, do not use Form W-9. Instead, use the appropriate. Form W-8 or Form 8233 (see The Foreign Account Tax Compliance Act (FATCA) requires a Pub. 5 15, Withholding of Tax on Nonresident Aliens and Foreign participating foreign financial institution to report all United States Entities). account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA Nonresident alien who becomes a resident alien. Generally, only a reporting code, later. and the Instructions for the Requester of Form nonresident alien individual may use the terms of a tax treaty to reduce W-9 for more information. or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions Updating Your Information specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise You must provide updated information to any person to whom you become a u.s. resident alien for tax purposes. claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this If you are a U.S. resident alien who is relying on an exception person. For example, you may need to provide updated information if contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement you are a C corporation that elects to be an S corporation, or if you no to Form W-9 that specifies the following fi ve items. longer are tax exempt. In addition, you must furnish a new Form W-9 if 1. The treaty country. Generally, this must be the same treaty under the name or Tl N changes for the account; for example. if the grantor of a which you claimed exemption from tax as a nonresident alien. grantor trust dies. 2. The treaty article addressing the income. 3. The article number (or location) in the tax treaty that contains the Penalties saving clause and its exceptions. Failure to furnish TIN. If you fail to furnish your correct TIN to a 4 . The type and amount of income that qualifies for the exemption requester. you are subject to a penalty of $50 for each such1failure from tax. unless your failure is due to reasonable cause and not to wilnul neglect. 5. Sufficient facts to justify the exemption from tax under the terms of Civil penalty for false inf ormation wit h respect to withholding. If you the treaty article. make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Form W·9 (Rev. 10·2018) Page 3 Criminal penalty for falsifying information. Willfully falsifying IF the entity/person on line 1 is THEN check the box for ... certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment . a(n) ... • Corporation Corporation Misuse of TINs. If the requester discloses or uses TINs in violation of federal law. the requester may be subject to civil and criminal penalties. • Individual Individual/sole proprietor or single- • Sole proprietorship, or member LLC Specific Instructions • Single-member limited liability Line 1 company (LLC) owned by an individual and disregarded for U.S. You must enter one of the following on this line; do not leave this line federal tax purposes. blank. The name should match the name on your tax return. • LLC treated as a partnership for Limited liability company and enter If this Form W·9 is for a joint account (oth er than an account U.S. federal tax purposes, the appropriate tax classification. maintained by a foreign financial institution (FFI)), list first, and then (P= Partnership; C= C corporation; circle, the name of the person or entity whose number you entered in • LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or S= S corporation) Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must or • LLC that is disregarded as an provide a Form W·9. entity separate from its owner but a. Individual. Generally, enter th e name shown on your tax return. If the owner is another LLC that is you have changed your last name without informing the Social Security not disregarded for U.S. fed eral tax Administration (SSA) of the name change, enter your first name, the last purposes. name as shown on your social security card, and your new last name. • Partnership Partnership Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a . This should also be the same as the • Trust/estate Trust/estate name you entered on the Form 1040/1 040N1040EZ you filed with your Line 4, Exemptions application. If you are exempt from backup withholding and/or FATCA reporting, b. Sole proprietor or single-member LLC. Enter your individual enter in the appropriate space on line 4 any code(s) that may apply to name as shown on your 1040/1040N1 040EZ on line 1. You may enter you. your business, trade, or “doing business as” (DBA) name on line 2. c. Partnership, LLC that is not a single-member LLC, C Exempt payee code. corporation, or S corporation. Enter the entity’s name as shown on the • Generally, individuals (Including sole proprietors) are not exempt from entity’s tax return on line 1 and any business, trade, or DBA name on backup withholding. line 2. • Except as provided below, corporations are exempt from backup d. Other entities. Enter your name as shown on required U.S. federal withholding for certain payments, including interest and dividends. tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any • Corporations are not exempt from backup withholding for payments business, trade, or DBA name on line 2. made in settlement of payment card or third party network transactions. • Corporations are not exempt from backup withholding with respect to e. Disregarded entity. For u.s. federal tax purposes, an entity that is attorneys’ fees or gross proceeds paid to attorneys, and corporations disregarded as an entity separate from its owner is treated as a that provide medical or health care services are not exempt with respect “disregarded entity.” See Regulations section 301 .7701-2(c)(2)(iii). Enter to payments reportable on Form 1099-MISC. the owner’s name on line 1. The name of the entity entered on line 1 The following codes identify payees that are exempt from backup should never be a disregarded entity. The name on line 1 should be the withholding. Enter the appropriate code in the space in line 4. name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded 1-An organization exempt from tax under section 501(a), any IRA, or entity for U.S. federal tax purposes has a single owner that is a U.S. a custodial account under section 403(b )(7) if the account satisfies the person, the U.S. owner’s name is required to be provided on line 1. If requirements of section 401(f)(2) the direct owner of the entity is also a disregarded entity, enter the first 2-The United States or any of its agencies or instrumentalities owner that is not disregarded for federal tax purposes. Enter the 3-Astate, th e District of Columbia, a U.S. commonwealth or disregarded entity’s name on line 2, “Business name/disregarded entity possession, or any of their political subdivisions or instrumentalities name.” If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. 4-A foreign government or any of its political subdivisions, agencies, This is the case even if the foreign person has a U.S. TIN. or instrumentalities Line 2 5-Acorporation 6-A dealer in securities or commodities required to register in the If you have a business name, trade name, DBA name, or disregarded United States, the District of Columbia, or a U.S. commonwealth or entity name, you may enter it on line 2. possession Line 3 7-A futures commission merchant registered with the Commodity Check the appropriate box on line 3 for the u.s. federal tax Futures Trading Commission classification of the person whose name is entered on line 1. Check only 8-Areal estate investment trust one box on line 3. 9-An entity registered at all times during the tax year under the Investment Company Act of 1940 10-A common trust fund operated by a bank under section 584(a) 11 -A financial institution 12-A middleman known in the investment community as a nominee or custodian 13-A trust exempt from tax under section 664 or described in section 4947
F01m W · 9 (Rev. 10·2018) Page 4 The following chart shows types of payments that may be exempt M-A tax exempt trust under a section 403(b) plan or section 457(g) from backup withholding. The chart applies to the exempt payees listed plan above, 1 through 13 Note: You may wish to consult with the financial institution requesting IF the payment is for . . . THEN the payment is exempt this form to determine whether the FATCA code and/or exempt payee for ... code should be completed. Interest and dividend payments AU exempt payees except Line 5 fo:r 7 Enter your address (number. street, and apartment or suite number). Broker transactions Exempt payees 1 through 4 and 6 This is where the requester of this Form W-9 will mail your information through 11 and all C corporations. returns. If this address differs from the one the requester alr·eady has on S corporations must not enter an file, write NEW at the top. If a new address is provided, ther·e is still a exempt payee code because they chance the old address will be used until the payor changes your are exempt only for sales of address in their records. noncovered securities acquired Line 6 prtorto2012. Enter your city, state, and ZIP code. Barter exchange transactions and Exempt payees 1 through 4 patronage dividends Part I. Taxpayer Identification Number (TIN) Payments over $600 required to be Generally, exempt payees Enter your TIN in the appropriate box. If you are a resident alien and reported and direct sales over 1 t hrough 52 you do not have and are not eligible to get an SSN, your TIN is your IRS 1 individual taxpayer identification number (ITIN). Enter it in the social $5,000 security number box. Hyou do not have an ITIN, see How to get a TIN Payments made in settlement of Exempt payees 1 through 4 below. payment card or third party network H you are a sole proprietor and you have an EIN, you may enter either transactions your SSN or EIN. 1 If you are a single-member LLC that is disregarded as an entity See Form 1099-MISC, Miscellaneous Income, and its instructions. separate from its owner. enter the owner’s SSN (or EIN. if th e owner has 2 However. the following payments made to a corporation and one). Do not enter the disregarded entity’s EIN. If the LLC is classified as reportable on Form 1099-MISC are not exempt from backup a corporation or partnership, enter the entity’s EIN. withholding: medical and health care payments, attorneys’ fees, gross Note: See What Name and Number To Give the Requester, later, for proceeds paid to an attorney reportable under section 6045~). and further clarification of name and TIN combinations. payments for services paid by a federal executive agency. How to get a TIN. If you do not have a TIN, apply for one immediately. Exemptior1 from FATCA report ing c ode. The following codes identify Form payees that are exempt from reporting under FATCA . These codes To apply for an SSN, get ss-s. Application lor a Social Security Card, from your local SSA office or get this form online at apply to persons submitting this form for accounts maintained outside www.SSAgov. You may also get this form by calling 1-800-772-1213. of the United States by certain foreign financial institutions. Therefore, if Use Form W-7, Application for IRS Individual Taxpayer Identification you are only submitting this form for an account you hold in the United Number, to apply for an ITIN, or Form $8-4, Application for Employer States. you may leave this field blank. Consult with the person Identification Number, to apply for an EIN. You can apply lor an EIN requesting this form if you are uncertain if the financial institution is online subject to these requirements. A requester may indicate that a code is by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer lden@cation Number (EIN) under Starting a not required by providing you with a Form W-9 with “Not Applicable” (or Business. Go to www.irs.gov/Forms to view, download, or print Form any similar indication) written or printed on the line for a FATCA W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderFotms to exemption code. place an order and have Form W-7 and/or SS-4 mailed to you within 10 A- An organization exempt from tax under section 501(a) or any business days. individual retirement plan as defined in section 7701(a)(37) If you are asked to complete Form W-9 but do not have a TIN, apply B- The United States or any of its agencies or instrumentalities for a TIN and write “Applied For” in the space for the TIN, sign and date C-A state, the District of Columbia, a U.S. commonwealth or the form, and give it to the requester. For interest and dividend possession, or any of their political subdivisions or instrumentalities payments, and certain payments made with respect to read ily tradable instruments, generally you will have 60 days to get a TIN and give it to 0—A corporation the stock of which i s regularly traded on one or the requester before you are subject to backup withholding on more established securities markets, as described in Regulations payments. The 60-day rule does not apply to other types of payments. section 1.1472·1(c)(1)(i) withholding You will be subject to backup on all such payments until E-A corporation that is a member of the same expanded affiliated you provide your TIN to the requester. group as a corporation described in Regulations section 1.1472-1(c)(1Xi) Not e: Entering “Applied For” means that you have already applied for a F- A dealer in securities, commodities, or derivative financial TIN or that you intend to apply for one soon. instruments (Including notional principal contracts, futures, forwards, Caution: A disregarded U.S. entity that has a foreign owner must use and options) that is registered as such under the laws of the United the appropriate Form W-8. States or any state G- A real estate investment trust Part II. Certification H-A regulated investment company as defined in section 851 or an entity registered at all times during the t ax year under the Investment To establish to the withholding agent that you are a U.S. person, or Company Act of 1940 resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4. or 5 below indicates otherwise. 1-A common trust fund as defined in section 584(a) For a joint account, only the person whose TIN is shown in Part 1 J- A bank as defined in section 581 should sign (When required). In the case of a disregarded entity, the K- Abroker person identified on line 1 must sign. Exempt payees, see Exempt payee L- A trust exempt from tax under section 664 or described in section code, earlier. 4947(aX1) Signature requirements. Complete the certification as indicated in items 1 through 5 below.
Form W·9 (Rev. 10·2018) Page 5 1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. For this type of account: Give name and EIN of: 14 Account with lhe Deparlrner>l of TI1e public enlity You must give your correct TIN, but you do not have to sign the Agriculhxe in the name of a public certification. ent1 1y (such as a state or local 2. Interest, dividend, broker, and barter exchange accounts government, school d1stnct, or opened after 1983 and broker accounts considered inactive during prison) that receives agricultural 1983. You must sign th e certification or backup withholding w ill apply. II program paymenls you are subject to backup w ithholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the 15. Grantor !rust filing under the F01m The trust certification before signing the form. 1041 Filing Method or the Optional Form I 001) Filing Melhod 2 {soo 3 . Real estate transactions. You must sign the certification. You may RegulatiOilssection 1.671-4(b)(2)(i)(8}) cross out item 2 of the certification. 4. Other payments. You must give your correct TIN, but you do not 1 List first and circle the name of the person whose number you furnish. have to sign the certification unless you have been notified that you If only one person on a joint account has an SSN, that person’s number have previously given an incorrect TIN. “Other payments” include must be furnished. payments made in the course of the requester’s trade or business lor 2 Circle the minor’s name and furnish the minor’s SSN. rents, royalties, goods (other than bills for merchandise), medical and health care services Qncluding payments to corporations), payments to 3 You must show your individual name and you may also enter your a nonemployee for services, payments made in settlement of payment business or DBA name on the “Business name/disregarded entity” card and third party network transaction s, payments to certain fishing name line. You may use either your SSN or EIN Of you have one), but the boat crew members and fishermen, and gross proceeds paid to IRS encourages you to use your SSN. attorneys (including payments to corporations). • List first and circle the name of the trust. estate. or pension trust . (Do 5. Mortgage interest paid by you, acquisition or abandonment of llot furnish the TIN of the persollal representative or trustee unless the secured property, cancellation of debt, qualified t uition program legal entity itself is not designated in the account title.) Also see Special payments (under section 529), ABLE accounts (under section 529A), IUies for pa1tnerships, earlier. IRA, Coverdell ESA, Archer MSA or HSA contributions or *Note: The grantor also must provide a Form W-9 to trustee of trust. distributions, and pension distributions. You must give your correct Note: II no name is circled When more than one name is listed, the TIN, but you do not have to sign the certification. llumber will be considered to be that of the first llame listed. What Name and Number To Give the Requester Secure Your Tax Records From Identity Theft For this type of account: Give name and SSN of: Identity th eft occurs when someone uses your personal information ! .Individual TI1e individual such as your name, SSN, or other identifying information, without your 2. Two or more Individuals 001nt Tho actual owner of the account or, 1f permission, to commit fraud or other crimes. All identity thief may use account) other than an account combined fLnds, the hrst 1nd1V1dual on your SSN to get a job or may file a tax return using your SSN to receive maintained by an FFI 1 a refund. the account 3. Two or more U.S. pe1sons Each holder of the account To reduce your risk: fjoint account maintained by an FFI) o Protect your SSN, 4. Custodial account of aminO< TI1e minor2 o Ensure your employer is protecting your SSN , and (Uniform Gill 10 Minors Acl) Be careful when choosing a tax preparer. o S. a. TI1e usual 1evocable savings bus! TI1e g1anlor· huslee 1 (granlor is also truslee) II your tax records are affected by identity theft and you receive a b. So-called !rust accounl that is not Tho actual owner’ llotice from the IRS, respond right away to the name and phlone number a legal or valid trust under state law printed on th e IRS notice or letter. If your tax records are not currently affected by identity theft but you 6. Sole proprietorShip or diSregarded TI1e wmer3 think you are at risk due to a lost or stolen purse or w allet, questionable enlily owned by an individual credit card activity or credit report, contact the IRS Identity Theft Hotline 7. Giantor trust filing under Optional TI1e gralltor’ at 1·800·908·4490 or submit Form 14039. Form 1099 f ll1ng Method I (see For more information, see Pub. 5027, Identity Theft Information for Regula lions section 1.671-4(b)(2)(i) Taxpayers. (A)) Victims of identity theft w ho are experiencing economic harm or a For this type of account: Give name and EIN of: systemic problem, or are seeking help in resolving tax problems that 8. Oisrega.ded enlity not owned by an TI1e owner have not been resolved through normal channels, may be eligible for individual Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling theTAS toll-free case intake line at 1·877-777-4778 •or TIY/TDD 9. A valid lrusl, eslale, m pension bus! Legal entity’ 1-800-829-4059. 10. Corporatior1or LLC elecling TI1e <XJ<poralion Protect yourself from suspicious ernails or phishing schemes. ol’•porale slalus or1 form 8832 or Form 2553 Phishing is th e creation and use of email and w ebsites designed to mimic legitimate business emails and websites. The most corllmon act 1 I. Assoc1abor1, club, rellg1ous, Tho organ1zation is sending all email to a user falsely claiming to be an established chantable, educatioml, or other tax· legitimate enterprise in an attempt to scam the user into surrendering exernpl organization pri vate information that w ill be used for identity theft. 12. Partnership or multi-member LLC The partners”‘p 13. A br<>ker or registered nomu1ce TI1o br<>ker or nomlllOO
FO<m W 9 (Rev. 10 2018) Page 6 The IRS does not initiate contacts with taxpayers via emails. Also, the Privacy Act Notice IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access Section 6109 of the Internal Revenue Code requires you to provide your information for their credit card, bank, or other financial accounts. correct TIN to persons ~ncluding federal agencies) who are required to If you receive an unsolicited email claiming to be from the IRS, . file information returns with the IRS to report interest, dividends, or forward this message to phishing@irs.gov. You may also report m1suse certain other income paid to you; mortgage int erest you paid; the of the IRS name, logo, or other IRS property to the Treasury Inspector acquisition or abandonment of secured property; the cancellation of General for Tax Administration (TIGTA) at 1-800-366-4484. You can debt; or contributions you made to an IRA, Archer MSA, or HSA The forward suspicious emails to the Federal Trade Commission at person collecting this form uses the information on the form to file them information retums with the IRS, reporting the above information. spam@uce.gov or report at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). Routine uses of this information include giving it to the Department of If you have been the victim of identity theft, see www.ldentityTheft.gov Justice for civil and criminal litigation and to cities, states, the District of and Pub. 5027. Columbia, and U.S. commonwea~hs and possessions lor use in administering their laws. The information also may be disclosed to other Visit www.irs.gov/ldentityTheft to leam more about identity theft and countries under a treaty, to federal and state agencies to enforce civil how to reduce your risk. and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.