Huntington Bancshares Inc 8-K, filed Jun 9, 2021
Huntington Bancshares Inc (HBAN)
8-K
2021-06-09
For: 2021-06-08
View Original
Added on
April 12, 2026
About this 8-K
Huntington Bancshares Inc filed this 8-K on June 9, 2021, reporting on events of June 8, 2021.
Items reported
- Item 2.01: Completed an acquisition or sale of assets
- Item 2.03: New debt or off-balance-sheet obligation
- Item 3.03: Change to shareholders' rights
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): June 8, 2021
(Exact Name of Registrant as Specified in Charter)
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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(Address of Principal Executive Offices, and Zip Code)
(614 ) 480-2265
Registrant’s Telephone Number, Including Area Code
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
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Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the
Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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 13(a) of the Exchange Act. ☐
| Item 2.01. |
Completion of Acquisition or Disposition of Assets.
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Effective June 9, 2021 (the “Closing Date”), Huntington Bancshares Incorporated (“Huntington” or the “Company”) completed its previously announced acquisition of TCF
Financial Corporation, a Michigan corporation (“TCF”), pursuant to the Agreement and Plan of Merger, dated as of December 13, 2020 (the “Merger Agreement”), by and between Huntington and TCF.
Pursuant to the Merger Agreement, (i) TCF merged with and into Huntington, with Huntington continuing as the surviving corporation (the “Merger”), and (ii) following the
Merger, TCF National Bank, a national bank and a wholly owned subsidiary of TCF, merged with and into The Huntington National Bank, a national bank and a wholly owned subsidiary of Huntington, with The Huntington National Bank continuing as the
surviving bank (the “Bank Merger”).
Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each share of the common stock, par value $1.00 per share, of TCF (“TCF
Common Stock”) issued and outstanding immediately prior to the Effective Time, other than certain shares held by Huntington and TCF, was converted into the right to receive 3.0028 shares (the “Exchange Ratio” and such shares, the “Merger
Consideration”) of common stock, par value $0.01 per share, of Huntington (“Huntington Common Stock”). Each holder of TCF Common Stock converted pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of
Huntington Common Stock (after taking into account all shares held by such holder) will instead receive cash (without interest) in lieu of such fractional share in accordance with the terms of the Merger Agreement. Pursuant to the Merger
Agreement, at the Effective Time, each share of 5.70% Series C Non-Cumulative Perpetual Preferred Stock, no par value, of TCF (“TCF Preferred Stock”) issued and outstanding immediately prior to the Effective Time was converted into the right to
receive a share of 5.70% Non-Cumulative Perpetual Preferred Stock Series I, par value $0.01 per share, of Huntington (“Huntington Series I Preferred Stock”). In addition, at the Effective Time, each outstanding TCF depositary share representing a
1/1000th interest in a share of TCF Preferred Stock was converted into a Huntington depositary share representing a 1/1000th interest in a share of Huntington Series I Preferred Stock (each, a “Huntington Series I Depositary Share”).
Pursuant to the Merger Agreement, at the Effective Time, each outstanding TCF equity award granted under TCF’s equity compensation plans, other than unvested TCF
restricted stock awards held by non-employee directors, was converted into a corresponding award with respect to Huntington Common Stock, with the number of shares underlying such award (and, in the case of stock options, the applicable exercise
price) adjusted based on the Exchange Ratio. Each such converted Huntington equity award continues to be subject to the same terms and conditions as applied to the corresponding TCF equity
award immediately prior to the Effective Time, except that, in the case of TCF restricted stock unit awards, the number of shares underlying the converted Huntington equity award was determined with any performance goals deemed satisfied at the
target level of performance. At the Effective Time, each outstanding unvested restricted stock award held by a non-employee director vested and was converted into the right to receive the
Merger Consideration in respect of each share of TCF Common Stock subject to such TCF restricted stock award immediately prior to the Effective Time.
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the
Merger Agreement, a copy of which is filed as Exhibit 2.1 and incorporated herein by reference.
The total aggregate consideration payable in the Merger was approximately 459 million shares of Huntington Common Stock. The issuance of shares of Huntington Common
Stock in connection with the Merger was registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-4 (File No. 333-252517) filed by the Company with the Securities and Exchange
Commission (the “Commission”) and declared effective on February 17, 2021 (the “Registration Statement”). The joint proxy statement/prospectus included in the Registration Statement (the
“Joint Proxy Statement/Prospectus”) contains additional information about the Merger Agreement and the transactions contemplated thereby.
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| Item 2.03. |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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In connection with the Merger and the Bank Merger, on the Closing Date, the Company assumed TCF’s obligations as required by the indentures and certain related agreements
with respect to TCF’s outstanding trust preferred securities (the “Trust Preferred Securities”), which have an aggregate principal amount of $20.6 million. In connection with the Merger and the Bank Merger, on the Closing Date, The Huntington
National Bank also assumed TCF’s obligations with respect to: (i) $150.0 million in aggregate principal amount of 4.125% fixed-to-floating rate subordinated notes due 2029 (the “2029 Notes”) issued by TCF National Bank on July 2, 2019; (ii) $150.0
million in aggregate principal amount of 5.500% fixed-to-floating rate subordinated notes due 2030 (the “2030 Notes”) issued by TCF National Bank on May 6, 2020; (iii) $150.0 million of 4.600% fixed rate subordinated notes due 2025 (the “2025
Notes”) that were issued by TCF National Bank on February 27, 2015; and (iv) $110.0 million in aggregate principal amount of 6.25% fixed rate subordinated notes due 2022 (the “2022 Notes”) that were issued by TCF National Bank on June 8, 2012 (the
2022 Notes, 2025 Notes, 2029 Notes and 2030 Notes, collectively, the “Notes”). In connection with the Merger and the Bank Merger, on the Closing Date, Huntington also assumed TCF’s obligations with respect to approximately $1.95 billion in
advances and other obligations issued by the Federal Home Loan Banks of Cincinnati, Des Moines and Indianapolis to TCF National Bank.
The supplemental indentures pursuant to which the Company assumed the Trust Preferred Securities, as well as the original indentures pursuant to which the Trust Preferred
Securities and the Notes were issued, have not been filed herewith pursuant to Item 601(b)(4)(v) of Regulation S-K under the Securities Act. The Company agrees to furnish a copy of such indentures to the Commission upon request.
| Item 3.03. |
Material Modification to Rights of Security Holders.
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In connection with the Merger, the Company filed articles supplementary to its charter (the “Articles Supplementary”) with the State Department of
Assessments and Taxation of Maryland (the “Maryland Department”), establishing the rights, preferences, privileges, qualifications, restrictions and limitations of the Huntington Series I Preferred Stock. The Articles Supplementary became
effective on June 8, 2021, immediately prior to the Effective Time. At the Effective Time, the Company issued 7,000 shares of Huntington Series I Preferred Stock. The Huntington Series I Preferred Stock is collectively represented by 7,000,000
shares of Huntington Series I Depositary Shares. Each holder of a Huntington Series I Depositary Share will be entitled to the proportional rights of a share of Huntington Series I Preferred Stock represented by the Huntington Series I Depositary
Share. The Huntington Series I Depositary Shares are evidenced by Global Receipts issued under the Deposit Agreement, dated as of September 14, 2017, by and among TCF Financial Corporation, a Delaware corporation (“Legacy TCF”), on the one hand,
and Computershare Trust Company, N.A. and Computershare Inc., jointly as Depositary (the “Depositary”), on the other hand (the “Original Deposit Agreement”), as amended by (i) the First Amendment to Deposit Agreement, dated as of July 31, 2019, by
and among Legacy TCF, TCF, and the Depositary (the “First Amendment to the Deposit Agreement”) and (ii) the Second Amendment to Deposit Agreement, dated as of June 9, 2021, by and among the Company, TCF and the Depositary (the “Second Amendment to
the Deposit Agreement”).
Huntington Series I Preferred Stock ranks, with respect to the payment of dividends and distributions upon liquidation, dissolution or winding-up,
(1) on a parity with (A) the Company’s Floating Rate Series B Non-Cumulative Perpetual Preferred Stock, par value of $0.01 and liquidation value per share of $1,000, (B) the Company’s 5.875% Series C Non-Cumulative Perpetual Preferred Stock, par
value $0.01 per share and liquidation value per share of $1,000, (C) the Company’s 6.250% Series D Non-Cumulative Perpetual Preferred Stock, par value $0.01 and liquidation value per share of $1,000, (D) the Company’s 5.700% Series E
Fixed-to-Floating rate Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $100,000, (E) the Company’s 5.625% Series F Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and
liquidation value per share of $100,000, (F) the Company’s 4.450% series G Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $100,000 and (G) Huntington’s 4.500% Series H Non-Cumulative Perpetual
Preferred Stock, par value $0.01 per share and liquidation preference of $1,000 (collectively, the “Parity Stock”) and (2) senior to Huntington Common Stock and each other class or series of preferred stock the Company may issue in the future, the
terms of which do not expressly provide that it ranks on a parity with or senior to Huntington Series I Preferred Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the Company (collectively, the “Junior
Securities”).
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Under the terms of Huntington Series I Preferred Stock, with certain limited exceptions, unless full dividends on all outstanding shares of
Huntington Series I Preferred Stock for the then-current dividend period have been declared and paid in full or declared and a sum sufficient for the payment thereof has been set aside, the Company may not (i) declare, pay or set aside dividends
on, or redeem, repurchase or acquire, Huntington Common Stock or other Junior Securities during such dividend period or (ii) repurchase, redeem or acquire Parity Stock during such dividend period.
The foregoing descriptions of the terms of Huntington Series I Preferred Stock and the Huntington Series I Depositary Shares are qualified in their
entirety by reference to the full text of the Articles Supplementary, the Original Deposit Agreement, the First Amendment to the Deposit Agreement, the Second Amendment to the Deposit Agreement, and the Form of Global Receipt, which are included as
Exhibit 3.1, Exhibit 4.1, Exhibit 4.2, Exhibit 4.3 and Exhibit 4.4, respectively, and are incorporated herein by reference.
| Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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Board of Directors
In accordance with the terms of the Merger Agreement, as of the Effective Time, the size of the board of directors of the Company (the “Board”) was increased to consist
of a total of 18 directors, including the 13 directors of the Company as of immediately prior to the Effective Time and five former directors of TCF. The five former directors of TCF appointed by the Board to fill the
increase in the size of the Board referred to above, in each case effective as of the Effective Time, are as follows: Richard H. King, Barbara L. McQuade, Roger J. Sit, Jeffrey L. Tate and Gary Torgow (collectively, the “New Directors”).
Other than the Merger Agreement, there are no arrangements between the New Directors and any other person pursuant to which the New Directors were selected as directors.
Non-employee members of the Board (other than Mr. Torgow) will be compensated for such service as described in the proxy statement filed by Huntington in connection with its 2021 annual meeting of shareholders
on March 12, 2021 and in any information that Huntington files with the SEC that updates or supersedes that information. Biographies of the New Directors can be found in TCF’s Amendment No. 1 to its Annual Report on Form 10-K for the fiscal year
ended December 31, 2020, which amendment was filed with the Commission on April 23, 2021.
In addition, as previously described in the Joint Proxy Statement/Prospectus under the section entitled “The Merger—Interests of TCF’s Directors and Executive Officers in
the Merger—Huntington Letter Agreements”, Mr. Torgow will serve as an advisor to Huntington through the third anniversary of the consummation of the Merger and, as compensation for such service and his compliance with applicable restrictive
covenants, became entitled to a lump-sum cash payment of $3.25 million as of the Effective Time and is entitled to an annual advisory fee equal to $3.25 million for each of the first two twelve (12)-month periods following the Effective Time and
$2.75 million for the third twelve (12)-month period following the Effective Time. These advisory fees (along with certain continued executive-level benefits) are the only compensation Mr. Torgow will receive with respect to his service to
Huntington or The Huntington National Bank in any capacity following the Effective Time.
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On May 31, 2019, a predecessor to TCF National Bank and GPC Adams LLC (“GPC Adams”, successor to 28 Associates LLC), a Michigan limited liability company, entered into a
lease agreement for the development and lease of a new headquarters building for TCF National Bank in Detroit. GPC Adams is 50% owned by the five adult children of Mr. Torgow, through their ownership of a member of GPC Adams, Park Elizabeth
Associates LLC. The members of Park Elizabeth Associates LLC are Elie Torgow, Yoni Torgow, Rachel H. Torgow Krakauer, Moshe Torgow, and Jacob Torgow. Elie Torgow is also the manager of GPC Adams. The approximate aggregate value of the interest
of Mr. Torgow’s children in the development and lease transaction is equal to approximately 50% of the amounts payable to GPC Adams thereunder. The lease agreement provides for a triple net lease by The Huntington National Bank (as successor to
TCF National Bank) of a proposed office building at the initial rate of $35 per rentable square foot for office space, or approximately $6,977,950 annually, and $50 per rentable square foot for retail space, or approximately $190,050 annually, with
two percent annual increases during the initial term. The lease will have a term of 22.5 years and a rent commencement date of January 1, 2022. The Huntington National Bank has four renewal options of 84 months for each renewal option. The leased
property will be approximately 421,481 square feet of gross area comprised of (a) a 203,171 square-foot building containing approximately (i) 199,370 square feet of rentable office space and (ii) 3,801 rentable square feet of 1st floor retail
space, and (b) a parking garage and related parking facilities, including without limitation, 311 parking spaces. The four renewal terms will be at 95% fair market rental, with two percent annual increases, provided the base rent during each
renewal term shall not be less than the immediately preceding lease year before commencement of each renewal term. GPC Adams, which owns the property, will remediate and improve the property and build the office building. The Huntington National
Bank will lease the 311 parking spaces within the premises at an estimated monthly cost of $300 per spot, or $1,119,600 annually, provided that up to 60 parking spaces may be subleased back by GPC Adams for the same amount. The Huntington National
Bank will also retain all parking rental income realized at the property from event parking rental services.
| Item 5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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In connection with the completion of the Merger and in accordance with the Merger Agreement, the Company’s charter was amended to increase the number of authorized shares
of Huntington Common Stock from 1,500,000,000 shares to 2,250,000,000 shares (the “Charter Amendment”), effective as of June 8, 2021, immediately prior to the Effective Time.
The foregoing summary of the Charter Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Charter Amendment, a
copy of which is filed as Exhibit 3.2 and incorporated herein by reference.
In connection with the Merger, the Company filed the Articles Supplementary with the Maryland Department, supplementing the Charter Amendment by establishing the Huntington Series I Preferred Stock consisting of 7,000 authorized shares. The Articles
Supplementary became effective on June 8, 2021, immediately prior to the Effective Time.
A description of the Articles Supplementary is contained in the section captioned “Description of New Huntington Preferred Stock” in the Registration Statement and is
incorporated herein by reference. The full text of the Articles Supplementary is filed as Exhibit 3.1 and is incorporated herein by reference.
| Item 8.01. |
Other Events.
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Effective June 9, 2021, the Board declared and set aside a quarterly cash dividend on the Huntington Series I Preferred Stock of $356.25 per share (equivalent to $0.35625
per Huntington Series I Depositary Share) payable September 1, 2021 to shareholders of record on August 15, 2021 (the “Series I Preferred Stock Dividend”).
On June 9, 2021, Huntington issued a press release announcing the completion of the Merger and the Bank Merger and the Series I Preferred Stock Dividend, a copy of which
is filed as Exhibit 99.1 and incorporated herein by reference.
| Item 9.01. |
Financial Statements and Exhibits.
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(a) Financial statements of businesses acquired.
The financial information required by this Item 9.01(a) of Form 8-K will be filed by an amendment to this Current Report on Form 8-K no later than 71 calendar days after
the date on which this Current Report on Form 8-K was required to be filed.
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(b) Pro forma financial information.
The pro forma financial information required by this Item 9.01(b) of Form 8-K will be filed by an amendment to this Current Report on Form 8-K no later than 71 calendar
days after the date on which this Current Report on Form 8-K was required to be filed.
(d) Exhibits.
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Exhibit No.
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Description
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Agreement and Plan of Merger, dated as of December 13, 2020, by and between Huntington Bancshares Incorporated and TCF Financial Corporation (incorporated by reference to Exhibit 2.1 to the
Company’s Current Report on Form 8-K, filed with the Commission on December 17, 2020)
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Articles Supplementary of Huntington Bancshares Incorporated, effective as of June 8, 2021
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Articles of Amendment of Huntington Bancshares Incorporated to Articles of Restatement of Huntington Bancshares Incorporated, effective as of June 8, 2021
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Deposit Agreement, dated as of September 14, 2017, by and among TCF Financial Corporation, a Delaware corporation, Computershare Trust Company, N.A. and Computershare Inc.
jointly as Depositary (incorporated by reference to Exhibit 4.2 to Form 8-K of TCF Financial Corporation, a Delaware corporation, filed with the Commission on September 14, 2017 (Commission File No. 001-10253))
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First Amendment to Deposit Agreement, effective as of August 1,
2019, by and among Chemical Financial Corporation, a Michigan corporation (now known as TCF Financial Corporation, a Michigan corporation), TCF Financial Corporation, a Delaware corporation, Computershare, Inc. and Computershare Trust
Company, N.A.
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Second Amendment to Deposit Agreement, dated as of June 9, 2021,
by and among TCF Financial Corporation, Huntington Bancshares Incorporated, Computershare, Inc. and Computershare Trust Company, N.A.
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Form of Global Receipt (included as Exhibit A of Exhibit 4.3)
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Press Release, dated June 9, 2021
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104
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Cover Page Interactive Data File (formatted as inline XBRL document)
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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HUNTINGTON BANCSHARES INCORPORATED
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By:
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/s/ Jana J. Litsey
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Jana J. Litsey
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General Counsel
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Dated: June 9, 2021
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Exhibit 3.1
ARTICLES SUPPLEMENTARY
DESIGNATING THE RIGHTS AND PREFERENCES
OF
5.70% SERIES I NON-CUMULATIVE PERPETUAL PREFERRED STOCK,
PAR VALUE $0.01 PER SHARE
OF
HUNTINGTON BANCSHARES INCORPORATED
HUNTINGTON BANCSHARES INCORPORATED, a Maryland corporation (hereinafter called the “Corporation”), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
FIRST: Under a power contained in Article Fifth of the charter of the Corporation (the “Charter”), the board of directors of the Corporation (the “Board of Directors”) and a duly
authorized committee thereof (the “Committee”), by duly adopted resolutions, classified and designated 7,000 shares of the authorized but unissued serial preferred stock of the Corporation, par value $0.01 per share (the “Serial Preferred
Stock”), as 5.70% Series I Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share, with the following preferences and rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and
terms and conditions of redemption, which, upon any restatement of the Charter, shall become part of Article Fifth of the Charter, with any necessary or appropriate renumbering or relettering of the sections or subsections hereof.
5.70% SERIES I NON-CUMULATIVE PERPETUAL PREFERRED STOCK
Section 1. Designation. The designation of the series of preferred stock shall be 5.70% Series I Non‑Cumulative Perpetual Preferred Stock (hereinafter
referred to as the “Series I Preferred Stock”). Each share of Series I Preferred Stock shall be identical in all respects to every other share of Series I Preferred Stock. Series I Preferred Stock will rank, with respect to the payment of
dividends and the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, (1) on a parity with the Corporation’s Floating Rate Series B Non-Cumulative Perpetual
Preferred Stock, par value $0.01 per share and liquidation value per share of $1,000, the Corporation’s 5.875% Series C Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $1,000, the Corporation’s
6.250% Series D Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $1,000, the Corporation’s 5.700% Series E Fixed-to-Floating Rate Non-Cumulative Perpetual Preferred Stock, par value $0.01 per
share and liquidation value per share of $100,000, 5.625% Series F Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $100,000, 4.450% Series G Non-Cumulative Perpetual Preferred Stock, par value
$0.01 per share and liquidation value per share of $100,000, 4.500% Series H Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $1,000, and each class or series of Serial Preferred Stock that the
Corporation may issue in the future, the terms of which expressly provide that such class or series will rank on a parity with the Series I Preferred Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the Corporation
(collectively, the “Parity Stock”) and (2) senior to the Common Stock and each other class or series of Serial Preferred Stock the Corporation may issue in the future, the terms of which do not expressly provide that it ranks on a parity with
or senior to the Series I Preferred Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the Corporation (the “Junior Stock”).
Section 2. Number of Shares. The number of authorized shares of Series I Preferred Stock shall be 7,000. Such number may from time to time be increased (but not in excess of the
total number of authorized shares of preferred stock) or decreased (but not below the number of shares of Series I Preferred Stock then outstanding) by further resolution duly adopted by the Board of Directors or any duly authorized committee of the
Board of Directors and in accordance with applicable law. All additional shares of Series I Preferred Stock shall be deemed to form a single series with the Series I Preferred Stock, provided that any such additional shares of Series I
Preferred Stock are not treated as “disqualified preferred stock” within the meaning of Section 1059(f)(2) of the U.S. Internal Revenue Code of 1986, as amended, and such additional shares of Series I Preferred Stock are otherwise treated as fungible
with the Series I Preferred Stock authorized under this Section 2 for U.S. federal income tax purposes. The Corporation shall have the authority to issue fractional shares of Series I Preferred Stock.
Section 3. Definitions. As used herein with respect to Series I Preferred Stock:
(a) “Appropriate Federal Banking Agency” means the “appropriate Federal banking agency” with respect to the Corporation as defined in Section 3(q) of the Federal Deposit Insurance Act
(12 U.S.C. Section 1813(q)), or any successor provision.
(b) “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions are not authorized or obligated by law, regulation or executive order to
close in New York, New York.
(c) “Closing Date” means June 9, 2021.
(d) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
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(e) “Continuing Director” means (a) if an “interested stockholder” (as defined in Section 3-601 of the Maryland General Corporation Law, as the same shall be in effect from time to
time) exists, any member of the Board of Directors who is not an interested stockholder or an “affiliate” or an “associate” (as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, as the same shall be in effect
from time to time) of an interested stockholder and who was a member of the Board of Directors immediately prior to the time that an interested stockholder became an interested stockholder, and any successor to a Continuing Director who is not an
interested stockholder or an affiliate or associate of an interested stockholder and is recommended to succeed a Continuing Director by a majority of the Continuing Directors who are then members of the Board of Directors; and (b) if an interested
stockholder does not exist, any member of the Board of Directors.
(f) “Corporation” means Huntington Bancshares Incorporated, a Maryland corporation.
(g) “Depositary Company” shall have the meaning set forth in Section 6(d) hereof.
(h) “Dividend Payment Date” shall have the meaning set forth in Section 4(a) hereof.
(i) “Dividend Period” shall have the meaning set forth in Section 4(a) hereof.
(j) “DTC” means The Depository Trust Company, together with its successors and assigns.
(k) “Preferred Director” shall have the meaning set forth in Section 7(c)(i) hereof.
(l) “Redemption Price” shall have the meaning set forth in Section 6(a) hereof.
(m) “Regulatory Capital Treatment Event” means the good faith determination by the Corporation that, as a result of (i) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or regulations of the United States or any political subdivision of or in the United States that is enacted or becomes effective on or after September 7, 2017, (ii) any proposed change in those laws or
regulations that is announced or becomes effective on or after September 7, 2017, or (iii) any official administrative decision or judicial decision, or administrative action, or other official pronouncement interpreting or applying those laws or
regulations that is announced on or after September 7, 2017, there is more than an insubstantial risk that the Corporation will not be entitled to treat the full liquidation value of all shares of Series I Preferred Stock then outstanding as “tier 1
capital” (or its equivalent) for purposes of the capital adequacy guidelines of the Board of Governors of the Federal Reserve System (or, as and if applicable, the capital adequacy guidelines or regulations of any successor Appropriate Federal
Banking Agency), as then in effect and applicable, for as long as any share of Series I Preferred Stock is outstanding.
(n) “Series I Preferred Stock” shall have the meaning set forth in Section 1 hereof.
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Section 4. Dividends.
(a) Rate. Holders of Series I Preferred Stock shall be entitled to receive, if, as and when declared by the Board of
Directors or any duly authorized committee of the Board of Directors, but only out of assets legally available therefor, non-cumulative cash dividends on the liquidation preference of $25,000 per share of Series I Preferred Stock, and no more,
payable quarterly in arrears on each March 1, June 1, September 1 and December 1; provided, however, if any such day is not a Business Day, then payment of any dividend otherwise payable on that date will be made on the next
succeeding day that is a Business Day (without any interest or other payment in respect of such delay) (each such day on which dividends are payable a “Dividend Payment Date”), commencing with the first such Dividend Payment Date to occur
after the Closing Date. The period from and including the date of issuance of the Series I Preferred Stock or any Dividend Payment Date to but excluding the next Dividend Payment Date is a “Dividend Period,” except that the initial Dividend
Period shall commence on and include June 1. Dividends on each share of Series I Preferred Stock will accrue on the liquidation preference amount of $25,000 per share at a rate per annum equal to 5.70%.
The record date for payment of dividends on the Series I Preferred Stock shall be the 15th day of the calendar month immediately preceding the month during which the Dividend Payment Date falls or such other date, not exceeding 30 days before the
applicable Dividend Payment Date, as shall be fixed by the Board of Directors. The amount of dividends payable shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Notwithstanding any other provision hereof,
dividends on the Series I Preferred Stock shall not be declared, paid or set aside for payment to the extent such act would cause the Corporation to fail to comply with laws and regulations applicable thereto, including applicable capital adequacy
guidelines.
(b) Non-Cumulative Dividends. Dividends on shares of Series I Preferred Stock shall be non-cumulative. To the extent that any dividends payable on
the shares of Series I Preferred Stock on any Dividend Payment Date are not declared and paid, in full or otherwise, on such Dividend Payment Date, then such unpaid dividends shall not cumulate and shall cease to accrue and be payable and the
Corporation shall have no obligation to pay, and the holders of Series I Preferred Stock shall have no right to receive, dividends accrued for such Dividend Period after the Dividend Payment Date for such Dividend Period or interest with respect to
such dividends, whether or not dividends are declared for any subsequent Dividend Period with respect to Series I Preferred Stock, any Parity Stock, any Junior Stock or any other class or series of authorized preferred stock of the Corporation.
(c) Priority of Dividends. So long as any share of Series I Preferred Stock remains outstanding, unless full dividends on all outstanding shares of
Series I Preferred Stock for the then-current Dividend Period have been declared and paid in full or declared and a sum sufficient for the payment thereof has been set aside, (i) no dividend shall be declared or paid or set aside for payment and no
distribution shall be declared or made or set aside for payment on any Junior Stock, other than a dividend payable solely in Junior Stock, (ii) no shares of Junior Stock shall be repurchased, redeemed or otherwise acquired for consideration by the
Corporation, directly or indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior Stock, or the exchange or conversion of one share of Junior Stock for or into another share of Junior Stock, and other than
through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock), nor shall any monies be paid to or made available for a sinking fund for the redemption of any such securities by the Corporation and (iii) no
shares of Parity Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series I Preferred Stock and such Parity Stock
except by conversion into or exchange for Junior Stock, during such dividend period. When dividends are not paid in full upon the shares of Series I Preferred Stock and any Parity Stock, all dividends declared upon shares of Series I Preferred Stock
and any Parity Stock shall be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that accrued dividends for the then‑current Dividend Period per share on Series I Preferred
Stock, and accrued dividends, including any accumulation, on any Parity Stock, bear to each other. No interest will be payable in respect of any dividend payment on shares of Series I Preferred Stock that may be in arrears. If the Board of
Directors or any duly authorized committee of the Board of Directors determines not to pay any dividend or a full dividend on a Dividend Payment Date, the Corporation will provide, or cause to be provided, written notice to the holders of the Series
I Preferred Stock prior to such date. Subject to the foregoing, and not otherwise, dividends (payable in cash, stock or otherwise) as may be determined by the Board of Directors or any duly authorized committee of the Board of Directors may be
declared and paid on any Junior Stock from time to time out of any assets legally available therefor, and the shares of Series I Preferred Stock shall not be entitled to participate in any such dividend.
-4-
(a) Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, holders of
Series I Preferred Stock shall be entitled, out of assets legally available therefor, before any distribution or payment out of the assets of the Corporation may be made to or set aside for the holders of any Junior Stock and subject to the rights of
any holders of any class or series of securities ranking senior to or on parity with Series I Preferred Stock upon liquidation and the rights of the Corporation’s depositors and other creditors, to receive in full a liquidating distribution in the
amount of the liquidation preference of $25,000 per share, plus any authorized, declared and unpaid dividends, without accumulation of any undeclared dividends, to the date of liquidation. Holders of Series I Preferred Stock shall not be entitled to
any further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation other than what is expressly provided for in this Section 5.
(b) Partial Payment. If the assets of the Corporation are not sufficient to pay in full the liquidation preference plus any authorized, declared and
unpaid dividends to all holders of Series I Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series I Preferred Stock and to the holders of all Parity Stock shall be paid pro rata in accordance with the
respective amounts that would be payable on such shares if all amounts payable thereon were paid in full.
(c) Residual Distributions. If the liquidation preference plus any authorized, declared and unpaid dividends has been paid in full to all holders of
Series I Preferred Stock, the holders of shares of Series I Preferred Stock will not be entitled to any further participation in any distribution of assets by the Corporation.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Corporation shall not be deemed a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the
Corporation, nor shall the merger, consolidation or any other business combination transaction of the Corporation into or with any other corporation or person or the merger, consolidation or any other business combination transaction of any other
corporation or person into or with the Corporation be deemed to be a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation.
-5-
Section 6. Redemption.
(a) Optional Redemption. The Corporation, at the option of its Board of Directors or any duly authorized committee of
the Board of Directors, may redeem in whole or in part the shares of Series I Preferred Stock at the time outstanding, at any time on December 1, 2022 or any Dividend Payment Date thereafter, upon notice given as provided in Section 6(b)
below. The redemption price for shares of Series I Preferred Stock shall be $25,000 per share, plus any declared and unpaid dividends for prior Dividend Periods, without accumulation of undeclared dividends (the “Redemption Price”).
Notwithstanding the foregoing, within 90 days following the occurrence of a Regulatory Capital Treatment Event, the Corporation may, at its option, subject to the approval of the Appropriate Federal Banking Agency, provide notice of its intent to
redeem as provided in Section 6(b) below, and subsequently redeem, all (but not less than all) of the shares of Series I Preferred Stock at the time outstanding, at the Redemption Price applicable on such date of redemption.
(b) Notice of Redemption. Notice of every redemption of shares of Series I Preferred Stock shall be either (i) mailed by
first class mail, postage prepaid, addressed to the holders of record of such shares to be redeemed at their respective last addresses appearing on the stock register of the Corporation or (ii) transmitted by such other method approved by the
Depositary Trust Company, in its reasonable discretion, to the holders of record of such shares to be redeemed. Such mailing or transmittal shall be at least 30 days and not more than 60 days before the date fixed for redemption. Notwithstanding
the foregoing, if the Series I Preferred Stock is held in book-entry form through DTC, the Corporation may give such notice in any manner permitted by DTC. Any notice mailed or transmitted as provided in this Section 6(b) shall be
conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail or other transmission, or any defect in such notice or in the mailing or transmittal thereof, to any holder of
shares of Series I Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series I Preferred Stock. Each notice shall state (i) the redemption date; (ii) the number of
shares of Series I Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iii) the Redemption Price; (iv) the place or places where the
certificates for such shares are to be surrendered for payment of the Redemption Price; and (v) that dividends on the shares to be redeemed will cease to accrue on the redemption date.
(c) Partial Redemption. In case of any redemption of only part of the shares of Series I Preferred Stock at the time outstanding, the shares of
Series I Preferred Stock to be redeemed shall be selected either pro rata from the holders of record of Series I Preferred Stock in proportion to the number of shares of Series I Preferred Stock held by such holders or in such other manner consistent
with the rules and policies of the NASDAQ as the Board of Directors or any duly authorized committee of the Board of Directors may determine to be fair and equitable. Subject to the provisions of this Section 6, the Board of Directors or any
duly authorized committee of the Board of Directors shall have full power and authority to prescribe the terms and conditions upon which shares of Series I Preferred Stock shall be redeemed from time to time.
-6-
(d) Effectiveness of Redemption. If notice of redemption has been duly given and if on or before the redemption date
specified in the notice all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other assets, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and
continue to be available therefor, or deposited by the Corporation with a bank or trust company selected by the Board of Directors or any duly authorized committee of the Board of Directors (the “Depositary Company”) in trust for the pro rata
benefit of the holders of the shares called for redemption, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the redemption date all shares so called for
redemption shall cease to be outstanding, all dividends with respect to such shares shall cease to accrue after such redemption date, and all rights with respect to such shares shall forthwith on such redemption date cease and terminate, except only
the right of the holders thereof to receive the amount payable on such redemption from such bank or trust company at any time after the redemption date from the funds so deposited, without interest. The Corporation shall be entitled to receive, from
time to time, from the Depositary Company any interest accrued on such funds, and the holders of any shares called for redemption shall have no claim to any such interest. Any funds so deposited and unclaimed at the end of three years from the
redemption date shall, to the extent permitted by law, be released or repaid to the Corporation, and in the event of such repayment to the Corporation, the holders of record of the shares so called for redemption shall be deemed to be unsecured
creditors of the Corporation for an amount equivalent to the amount deposited as stated above for the redemption of such shares and so repaid to the Corporation, but shall in no event be entitled to any interest.
Section 7. Voting Rights. The holders of Series I Preferred Stock will have no voting rights and will not be entitled to elect any directors, except
as expressly provided by law and except that:
(a) Supermajority Voting Rights-Amendments. Unless the vote or consent of the holders of a greater number of shares
shall then be required by law, the affirmative vote or consent of the holders of at least 66⅔% of all of the shares of the Series I Preferred Stock at the time outstanding, voting separately as a class, shall be required to authorize any amendment of
the Charter or of any certificate amendatory thereof or supplemental thereto (including any articles supplementary or any similar document relating to any series of preferred stock) which will materially and adversely affect the powers, preferences,
privileges or rights of the Series I Preferred Stock, taken as a whole; provided, however, that the following will not be deemed to adversely affect the powers, preferences, privileges or rights of the Series I Preferred Stock: (i)
any increase in the amount of the authorized or issued Series I Preferred Stock, (ii) any increase in the amount of authorized preferred stock of the Corporation, or (iii) the creation and issuance, or an increase in the authorized or issued amount,
of other series of preferred stock ranking equally with and/or junior to the Series I Preferred Stock with respect to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or the distribution of assets upon
liquidation, dissolution or winding up of the Corporation.
-7-
(b) Supermajority Voting Rights-Priority. Unless the vote or consent of the holders of a greater number of shares shall
then be required by law, the affirmative vote or consent of the holders of at least 66⅔% of all of the shares of the Series I Preferred Stock and all other Parity Stock, at the time outstanding, voting as a single class without regard to series,
shall be required to issue, authorize or increase the authorized amount of, or to issue or authorize any obligation or security convertible into or evidencing the right to purchase, any additional class or series of stock ranking prior to the shares
of the Series I Preferred Stock and all other Parity Stock as to dividends or the distribution of assets upon liquidation, dissolution or winding up of the Corporation.
(i) Voting Right. If and whenever dividends on the Series I Preferred Stock or any other class or series of preferred stock that ranks
on parity with the Series I Preferred Stock as to payment of dividends, and upon which voting rights equivalent to those granted by this Section 7(c) have been conferred and are exercisable, have not been paid in an aggregate amount equal, as
to any class or series, to at least six quarterly Dividend Periods (whether consecutive or not), the number of directors constituting the Board of Directors shall be increased by two, and the holders of the Series I Preferred Stock (together with
holders of any other class of the Corporation’s authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did
not exist), shall have the right, voting separately as a single class without regard to series, to the exclusion of the holders of Common Stock, to elect two directors of the Corporation to fill such newly created directorships (and to fill any
vacancies in the terms of such directorships), provided that the Board of Directors shall at no time include more than two such directors. Each such director elected by the holders of shares of Series I Preferred Stock and any other class or
series of preferred stock that ranks on parity with the Series I Preferred Stock as to payment of dividends is a “Preferred Director.”
(ii) Election. The election of the Preferred Directors will take place at any annual meeting of stockholders or any special meeting of the holders of Series I
Preferred Stock and any other class or series of the Corporation’s stock that ranks on parity with Series I Preferred Stock as to payment of dividends and for which dividends have not been paid, called as provided herein. At any time after the
special voting power has vested pursuant to Section 7(c)(i) above, a majority of the Continuing Directors may, and within 20 days after the written request of any holder of Series I Preferred Stock (addressed to the Continuing Directors at
the Corporation’s principal office) must (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special
meeting of stockholders), call a special meeting of the holders of Series I Preferred Stock, and any other class or series of preferred stock that ranks on parity with Series I Preferred Stock as to payment of dividends and for which dividends have
not been paid, for the election of the two directors to be elected by them as provided in Section 7(c)(iii) below. The Preferred Directors shall each be entitled to one vote per director on any matter.
-8-
(iii) Notice for Special Meeting. Notice for a special meeting will be given in a similar manner to that provided in the Corporation’s
bylaws for a special meeting of the stockholders. The Preferred Directors elected at any such special meeting will hold office until the next annual meeting of the Corporation’s stockholders unless they have been previously terminated or removed
pursuant to Section 7(c)(iv). In case any vacancy in the office of a Preferred Director occurs (other than prior to the initial election of the Preferred Directors), the vacancy may be filled by the written consent of the Preferred Director
remaining in office, or if none remains in office, by a vote of the holders of the outstanding shares of Series I Preferred Stock (together with holders of any other class of the Corporation’s authorized preferred stock having equivalent voting
rights, whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not exist) to serve until the next annual meeting of the stockholders.
(iv) Termination; Removal. Whenever full dividends have been paid regularly on the Series I Preferred Stock and any other class or
series of preferred stock that ranks on parity with Series I Preferred Stock as to payment of dividends, if any, for at least four consecutive Dividend Periods, then the right of the holders of Series I Preferred Stock to elect such additional two
directors will cease (subject to the same provisions for the vesting of the special voting rights in the case of any similar non-payment of dividends in respect of future Dividend Periods) and the term of office of each Preferred Director so elected
will immediately terminate and the number of directors constituting the Corporation’s board of directors will be automatically reduced accordingly. Any Preferred Director may be removed at any time without cause by the holders of record of a
majority of the outstanding shares of Series I Preferred Stock (together with holders of any other class of the Corporation’s authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be
entitled to vote for the election of directors if such default in dividends did not exist) when they have the voting rights described in this Section 7(c).
(d) Changes after Provision for Redemption. No vote or consent of the holders of Series I Preferred Stock shall be required pursuant to Section
7(a), (b) or (c) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to such section, all outstanding Series I Preferred Stock shall have been redeemed, or notice of redemption has been given and
sufficient funds shall have been irrevocably deposited in trust to effect such redemption.
Section 8. Conversion. The holders of Series I Preferred Stock shall not have any rights to convert such Series I Preferred Stock into shares of any other class of capital stock
of the Corporation.
Section 9. Rank. Notwithstanding anything set forth in the Charter or these Articles Supplementary to the contrary, the Board of Directors or any duly authorized committee of the
Board of Directors, without the vote of the holders of the Series I Preferred Stock, may authorize and issue additional shares of Junior Stock, Parity Stock or, subject to the voting rights granted in Section 7, any class of securities
ranking senior to the Series I Preferred Stock as to dividends and the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.
-9-
Section 10. Repurchase. Subject to the limitations imposed herein, the Corporation may purchase and sell Series I Preferred Stock from time to time to such extent, in such manner,
and upon such terms as the Board of Directors or any duly authorized committee of the Board of Directors may determine; provided, however, that the Corporation shall not use any of its funds for any such purchase when there are
reasonable grounds to believe that the Corporation is, or by such purchase would be, rendered insolvent.
Section 11. Unissued or Reacquired Shares. Shares of Series I Preferred Stock not issued or which have been issued, redeemed or otherwise purchased or acquired by the Corporation
shall be restored to the status of authorized but unissued shares of preferred stock without designation as to series.
Section 12. No Sinking Fund. Shares of Series I Preferred Stock are not subject to the operation of a sinking fund.
SECOND: The Series I Preferred Stock has been classified and designated by the Board of Directors and the Committee, under the authority contained in the Charter.
THIRD: These Articles Supplementary have been approved by the Board of Directors and the Committee in the manner and by the vote required by law.
FOURTH: These Articles Supplementary shall become effective at 11:59 p.m., Eastern Time, on June 8, 2021.
FIFTH: The undersigned Chairman, President and Chief Executive Officer of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters
or facts required to be verified under oath, the undersigned Officer acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the
penalties of perjury.
-10-
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in its name and on its behalf by its Chairman, President and Chief Executive Officer and attested to by its
duly authorized officer on this 4th day of June, 2021.
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ATTEST:
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HUNTINGTON BANCSHARES INCORPORATED
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|||
|
By:
|
/s/ Erin F. Siegfried
|
By:
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/s/ Stephen D. Steinour
|
|
|
Name:
|
Erin F. Siegfried
|
Name:
|
Stephen D. Steinour
|
|
|
Title:
|
Assistant Secretary
|
Title:
|
Chairman, President and Chief Executive Officer
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Exhibit 3.2
HUNTINGTON BANCSHARES INCORPORATED
ARTICLES OF AMENDMENT
Huntington Bancshares Incorporated, a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: The charter of the Corporation (the “Charter”) is hereby amended to delete the first paragraph of Article FIFTH of the Charter and to substitute the following in lieu thereof:
“FIFTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is 2,256,617,808, of which 2,250,000,000 shares shall be Common Stock, par value $0.01 per
share, and 6,617,808 shares shall be Serial Preferred Stock, par value $0.01 per share. The aggregate par value of all authorized shares of stock of all classes having par value is $22,566,178.08.”
SECOND: The amendment to the Charter as set forth above, increasing the number of shares of stock and the number of shares of Common Stock that the Corporation is authorized to issue, has been duly advised by the Board
of Directors and approved by the stockholders of the Corporation as required by law.
THIRD: The total number of shares of stock which the Corporation had authority to issue immediately prior to the foregoing amendment of the Charter was 1,506,617,808 shares of stock, consisting of 1,500,000,000 shares of
Common Stock, par value $0.01 per share, and 6,617,808 shares of Serial Preferred Stock, par value $0.01 per share. The aggregate par value of all authorized shares of stock of all classes having par value immediately prior to the foregoing
amendment of the Charter was $15,066,178.08.
FOURTH: The total number of shares of stock which the Corporation has authority to issue pursuant to the foregoing amendment of the Charter is 2,256,617,808 shares of stock, consisting of 2,250,000,000 shares of Common
Stock, par value $0.01 per share, and 6,617,808 shares of Serial Preferred Stock, par value $0.01 per share. The aggregate par value of all authorized shares of stock of all classes having par value is $22,566,178.08.
FIFTH: The information required by Section 2-607(b)(2)(i) of the Maryland General Corporation Law is not changed by the foregoing amendment of the Charter.
SIXTH: The foregoing amendment of the Charter shall become effective at 11:59 p.m., Eastern Time, on June 8, 2021.
SEVENTH: The undersigned Chairman, President and Chief Executive Officer of the Corporation acknowledges these Articles of Amendment to be the corporate act of the Corporation and, as to all matters of fact required to
be verified under oath, the undersigned Chairman, President and Chief Executive Officer acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made
under the penalties of perjury.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to be signed in its name and on its behalf by its President and attested to by its duly authorized officer on this 4th day of June, 2021.
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ATTEST:
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HUNTINGTON BANCSHARES INCORPORATED
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|||
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By:
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/s/ Erin F. Siegfried
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By:
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/s/ Stephen D. Steinour
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|
|
Name:
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Erin F. Siegfried
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Name:
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Stephen D. Steinour
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|
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Title:
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Assistant Secretary
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Title:
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Chairman, President and Chief Executive Officer
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Exhibit 4.2
THIS FIRST AMENDMENT TO DEPOSIT AGREEMENT (the “Amendment”), dated as of July 31, 2019, by and among (i) Chemical
Financial Corporation, a Michigan corporation (“Chemical”), (ii) TCF Financial Corporation, a Delaware corporation (“TCF”), and
(iii) COMPUTERSHARE INC., a Delaware corporation (“Computershare”), and its wholly owned subsidiary, COMPUTERSHARE TRUST COMPANY, N.A., a federally chartered national association (the “Trust Company”), jointly as Depositary (the “Depositary”).
W I T N E S S E T H :
WHEREAS, TCF and the Depositary entered into a Deposit Agreement, dated as of September 14, 2017 (the “Original
Agreement”). Capitalized terms used but not defined in this Amendment shall have the meaning(s) ascribed thereto in the Original Agreement; and
WHEREAS, pursuant to the terms of the Original Agreement, TCF deposited 7,000 shares of its 5.70% Series C Non-Cumulative Perpetual Preferred Stock, par
value $0.01 per share, with a liquidation preference of $25,000 per share (the “Old Preferred Stock”) with the Depositary and issued receipts each representing 1/1,000th fractional interest in a share of Old Preferred Stock (collectively, the “Old Receipts”); and
WHEREAS, on January 27, 2019, Chemical and TCF entered into an Agreement and Plan of Merger (the “Merger
Agreement”), pursuant to which TCF will merge with and into Chemical, with Chemical continuing as the surviving entity (the “Merger”); and
WHEREAS, pursuant to the Merger Agreement, at the effective time of the Merger at 12:01 AM Eastern Time on August 1, 2019 (the “Effective Time”), (i) each outstanding share of TCF’s Old Preferred Stock, will be converted and exchanged into the right to receive, without interest, one share of Chemical’s newly created 5.70% Series C
Non-Cumulative Perpetual Preferred Stock, no par value per share, with a liquidation preference of $25,000 per share (the “New Preferred Stock”), and (ii) Chemical will change its name to
“TCF Financial Corporation”; and
WHEREAS, Section 4.6 of the Deposit Agreement provides that upon any merger of the Corporation, the Corporation may make certain adjustments and treat any
securities received by the Depositary in exchange for or upon conversion of or in respect of the Series C Preferred Stock as new deposited securities so received in exchange for or upon conversion or in respect of such Series C Preferred Stock; and
WHEREAS, pursuant to Section 6.1 of the Original Agreement, TCF and the Depositary wish to amend the Original Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree at the Effective Time as follows:
| 1. |
Assumption of Obligations; Succession. As successor-in-interest to TCF pursuant to the Merger, Chemical hereby agrees, as of the Effective Time, to (a) succeed to, be substituted
for, and assume all of the rights and duties and the performance and observance of all obligations and covenants to be performed or observed under the Original Agreement, as hereby amended, and (b) be substituted for, and may exercise every
right and power of, TCF under the Original Agreement, as hereby amended, with the same effect as if Chemical had been named as the “Corporation” therein.
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| 2. |
Amendments to the Original Agreement.
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| a. |
From and after the Effective Time, all references in the Original Agreement to (i) the term “Corporation” shall mean Chemical Financial Corporation, a Michigan corporation (which then shall be known as TCF Financial Corporation, a Michigan
corporation, following its name change as described in the fourth recital of this Amendment), (ii) the term “Certificate of Designations” shall mean the relevant Certificate of Designations filed
with the Michigan Department of Licensing and Regulatory Affairs establishing Chemical’s 5.70% Series C Non-Cumulative Perpetual Preferred Stock, no par value per share, with a liquidation preference of $25,000 per share, (iii) the term
“Deposit Agreement” shall mean the Original Deposit Agreement, as amended by this Amendment, and (iv) the term “Series C Preferred Stock” shall mean Chemical’s 5.70% Series C Non-Cumulative Perpetual Preferred Stock, no par value per share,
with a liquidation preference of $25,000 per share.
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| b. |
Pursuant to Section 4.6 of the Original Agreement, following the Effective Time, the Old Receipts shall be exchanged for and replaced with new receipts substantially in the form attached hereto as Exhibit A (the “New Receipts”) as provided in Section 3(b) of this Amendment, which New Receipts shall represent 1/1,000th
fractional interest in a share of the New Preferred Stock, with such adjustments as to future transactions, if any, as provided in the Original Agreement, as amended by this Amendment.
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| c. |
The first paragraph of Section 7.4 of the Original Agreement is hereby amended and restated in its entirety to read as follows:
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“Any and all notices to be given to the Corporation hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or
sent by mail, facsimile transmission or electronic mail, confirmed by letter, addressed to the Corporation at
TCF Financial Corporation
333 W. Fort Street, Suite 1800
Detroit, Michigan
Attention: General Counsel/Secretary
Facsimile No: (952) 475-7975
Email: investor@tcfbank.com
or any other addresses of which the Corporation shall have notified the Depositary in writing.”
- 2 -
| d. |
Exhibit A of the Original Agreement is hereby deleted in its entirety and replaced by a new Exhibit A in the form of Exhibit A to this Amendment.
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| e. |
Exhibit B of the Original Agreement is hereby deleted in its entirety and replaced by a new Exhibit B in the form of Exhibit B to this Amendment.
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| 3. |
Direction to Depositary.
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| a. |
Upon receipt of 7,000 uncertificated shares of the New Preferred Stock via direct registration, the Depositary is hereby authorized and directed (a) as Transfer Agent and Registrar, to register same in the name of Computershare Inc. and
Computershare Trust Company, N.A., jointly as Depositary, (b) deposit the New Preferred Stock pursuant to Section 2.2 of the Original Agreement in exchange for the Old Preferred Stock, (c) deliver the Old Preferred Stock to Chemical, and (d)
take all other action necessary or advisable in connection with the foregoing.
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| b. |
Upon receipt of the Officer’s Certificate dated as of the date hereof and all other information required pursuant to Section 2.2 of the Original Agreement, the Depositary is hereby authorized and directed to (a) execute the Global
Registered Receipt evidencing the New Receipt and deliver the same to The Depositary Trust Company in exchange for the Old Receipt, (b) cancel the Old Receipt pursuant to Section 2.7, and (c) take all other action necessary or advisable in
connection with the foregoing.
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| 4. |
Effectiveness. Upon the execution and delivery of a counterpart hereof by each of the parties hereto, this Amendment shall become effective at the Effective Time. Except as
expressly modified herein, the Original Agreement shall continue to be and shall remain, in full force and effect and the valid and binding obligation of the parties thereto (after giving effect to the Merger) in accordance with its terms.
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| 5. |
Termination of Merger Agreement. If for any reason the Merger Agreement is terminated in accordance with its terms, then this Amendment shall automatically terminate and be of no
further force and effect and the Original Agreement shall remain the same as it existed immediately prior to execution of this Amendment, without prejudice to any action taken prior to such termination in compliance with the Original
Agreement as amended hereby. TCF will provide the Depositary with prompt written notice if the Merger Agreement is terminated.
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| 6. |
Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
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| 7. |
Counterparts. This Amendment may be executed in one or more counterparts (and such counterparts may be delivered in electronic format), and all those counterparts together shall
constitute one original document.
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| 8. |
Severability. If any provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, illegal or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in full force and effect and shall in no way be effected, impaired or invalidated.
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- 3 -
| 9. |
Amendment. This Amendment may not be amended or modified except in the manner specified for an amendment of or modification to the Original Agreement, as amended by this
Amendment.
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| 10. |
Descriptive Headings. Descriptive headings of the several sections of this Amendment are inserted for convenience of reference only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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[Signature Page Follows]
- 4 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers, hereunto duly agreed and authorized, as of the
Effective Time.
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CHEMICAL FINANCIAL CORPORATION, a
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Michigan Corporation
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By:
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/s/ David T. Provost
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Name:
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David T. Provost
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Title:
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Chief Executive Officer and President
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TCF FINANCIAL CORPORATION, a Delaware
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Corporation
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By:
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/s/ Joseph T. Green
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Name:
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Joseph T. Green
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Title:
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SVP / General Counsel
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COMPUTERSHARE INC. and COMPUTERSHARE TRUST COMPANY,
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N.A., acting jointly
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By:
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/s/ Michael J. Lang
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Name:
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Michael J. Lang
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Title:
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Senior Vice President
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- 5 -
EXHIBIT A
FORM OF GLOBAL RECEIPT
Unless this receipt is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to TCF Financial Corporation, a Michigan
corporation, or its agent for registration of transfer, exchange, or payment, and any receipt issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
DEPOSITARY SHARES
[ ]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING 1/1,000TH OF ONE SHARE
OF 5.70% SERIES C NON-CUMULATIVE PERPETUAL PREFERRED STOCK
OF
TCF FINANCIAL CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF MICHIGAN
CUSIP: 872307202
SEE REVERSE FOR CERTAIN DEFINITIONS
Dividend Payment Dates: Beginning September 1, 2019, each March 1, June 1, September 1 and December 1.
COMPUTERSHARE TRUST COMPANY, N.A. and COMPUTERSHARE INC., acting jointly as Depositary (the “Depositary”), hereby certify that Cede & Co. is the registered
owner of [_____________] DEPOSITARY SHARES (“Depositary Shares”), each Depositary Share representing 1/1,000th of one share of 5.70% Series C Non-Cumulative Perpetual
Preferred Stock, no par value per share, liquidation preference $25,000 per share, (the “Stock”), of TCF Financial Corporation, a Michigan corporation (the “Corporation”), on deposit with the Depositary, subject to the terms and entitled to the
benefits of the Deposit Agreement dated as of September 14, 2017 (the “Deposit Agreement”), among the Corporation, as successor by merger to TCF Financial Corporation, a Delaware corporation, the Depositary and the holders from time to time of the
Depositary Receipts. By accepting this Depositary Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Depositary Receipt shall not be valid or obligatory for any purpose
or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer and, a Registrar for the Receipts (other than the Depositary) shall have
been appointed, countersigned by such Registrar by the manual or facsimile signature of a duly authorized officer thereof.
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Dated:
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COMPUTERSHARE TRUST COMPANY, N.A., and
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COMPUTERSHARE INC., acting jointly as Depositary
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By:
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Authorized Officer
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FORM OF REVERSE OF RECEIPT
TCF FINANCIAL CORPORATION
TCF FINANCIAL CORPORATION, A MICHIGAN CORPORATION (THE “CORPORATION”) WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF RECEIPT WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE
CERTIFICATE OF DESIGNATIONS ESTABLISHING THE SERIES C NON-CUMULATIVE PERPETUAL PREFERRED STOCK OF THE CORPORATION. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
The Corporation will furnish without charge to each registered holder of receipts who so requests the powers, designations, preferences and relative, participating, optional or other special rights
of each class of stock or series thereof of the Corporation, and the qualifications, limitations or restrictions of such preferences and/or rights. Such request may be made to the Corporation or to the Registrar.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the form of ownership on the face of this certificate shall be construed as though they were written out in full according to applicable
laws or regulations. Abbreviations in addition to those appearing below may be used.
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Abbreviation
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Equivalent Phrase
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Abbreviation
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Equivalent Phrase
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JT TEN
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As joint tenants, with right of survivorship and not as tenants in common
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TEN BY ENT
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As tenants by the entireties
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TEN IN COM
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As tenants in common
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UNIF GIFT MIN ACT
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Uniform Gifts to Minors Act
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Abbreviation
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Equivalent Word
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Abbreviation
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Equivalent Word
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Abbreviation
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Equivalent Word
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ADM
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Administrator(s), Administratrix
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EX
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Executor(s), Executrix
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PAR
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Paragraph
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AGMT
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Agreement
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FBO
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For the benefit of
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PL
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Public Law
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ART
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Article
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FDN
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Foundation
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TR
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(As) trustee(s), for, of
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CH
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Chapter
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GDN
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Guardian(s)
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U
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Under
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CUST
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Custodian for
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GDNSHP
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Guardianship
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UA
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Under agreement
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DEC
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Declaration
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MIN
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Minor(s)
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UW
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Under will of, Of will of, Under last will & testament
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EST
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Estate, of Estate of
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For value received, _________________hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Receipt, and do(es) hereby irrevocably constitute and appoint ________ Attorney to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.
| Dated: |
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NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every particular, without alteration or enlargement or any change
whatsoever.
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SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations, and credit unions with membership in an
approved signature guarantee medallion program), pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
EXHIBIT B
FORM OF OFFICER’S CERTIFICATE
I, [insert name], [insert title] of Chemical Financial Corporation (the “Corporation”),
hereby certify that pursuant to the terms of the Certificate of Designations filed with the Michigan Department of Licensing and Regulatory Affairs on July 31, 2019 and effective August 1, 2019 (the “Certificate of Designations”), and pursuant
to resolutions of the Board of Directors of the Corporation (the “Board”) adopted at a meeting of the Board on January 27, 2019, the Corporation has established the 5.70 Series C Non-Cumulative Perpetual Preferred Stock (the “Series
C Preferred Stock”) which the Corporation desires to deposit with the Depositary for the purposes of being subject to the terms and conditions of the Deposit Agreement, dated as of September 14, 2017, by and among the Corporation (as successor
in interest to TCF Financial Corporation), on the one hand, and Computershare Trust Company, N.A. and Computershare Inc., jointly as Depositary, on the other hand, as amended by the First Amendment to Deposit Agreement, dated as of July 31, 2019, by
and among the Corporation, TCF Financial Corporation and the Depositary (as so amended, the “Deposit Agreement”). In connection therewith, the Board or a duly authorized committee thereof has authorized the terms and conditions with respect to
the Series C Preferred Stock as described in the Certificate of Designations attached as Annex A hereto. Any terms of the Series C Preferred Stock that are not so described in the Certificate of Designations and any terms of the Receipts
representing such Series C Preferred Stock that are not described in the Deposit Agreement are described below:
Aggregate Number of shares of Series C Preferred Stock issued on the day hereof:
CUSIP Number for Receipts:
Denomination of Depositary Share per share of Series C Preferred Stock (if different than 1/1000th of a share of
Series C Preferred Stock):
Redemption Provisions (if different than as set forth in the Deposit Agreement):
Name of Global Receipt Depositary: The Depository Trust Company
Name of Registrar with Respect to the Receipts (if other than Computershare Trust Company, N.A.):
Name of Registrar, Dividend Disbursing Agent, and Redemption Agent with Respect to the Series C Preferred Stock (if other than Computershare Trust Company, N.A.):
Special terms and conditions:
Closing date:
All capitalized terms used but not defined herein shall have such meaning as ascribed thereto in the Deposit Agreement.
Date: [_____________], 2019.
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By:
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Name:
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Title:
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Annex A
Certificate of Designations
CERTIFICATE OF DESIGNATIONS
OF
5.70% SERIES C NON-CUMULATIVE PERPETUAL PREFERRED STOCK
OF
TCF FINANCIAL CORPORATION
Section 1. Designation. The designation of the series of preferred stock shall be 5.70% Series C Non‑Cumulative Perpetual Preferred Stock
(hereinafter referred to as the “Series C Preferred Stock”). Each share of Series C Preferred Stock shall be identical in all respects to every other share of Series C Preferred Stock. Series C Preferred Stock will rank equally with Parity
Stock, if any, and will rank senior to Junior Stock with respect to the payment of dividends and the distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.
Section 2. Number of Shares. The number of authorized shares of Series C Preferred Stock shall be 8,050. Such number may from time to time be increased (but not in excess of
the total number of authorized shares of preferred stock) or decreased (but not below the number of shares of Series C Preferred Stock then outstanding) by further resolution duly adopted by the board of directors of the Corporation or any duly
authorized committee of the board of directors of the Corporation and by the filing of a certificate pursuant to the provisions of the Michigan Business Corporation Act stating that such increase or reduction, as the case may be, has been so
authorized. All additional shares of Series C Preferred Stock shall be deemed to form a single series with the Series C Preferred Stock, provided that any such additional shares of Series C Preferred Stock are not treated as “disqualified
preferred stock” within the meaning of Section 1059(f)(2) of the U.S. Internal Revenue Code of 1986, as amended, and such additional shares of Series C Preferred Stock are otherwise treated as fungible with the Series C Preferred Stock authorized
under this Section 2 for U.S. federal income tax purposes. The Corporation shall have the authority to issue fractional shares of Series C Preferred Stock.
Section 3. Definitions. As used herein with respect to Series C Preferred Stock:
(a) “Appropriate Federal Banking Agency” means the “appropriate Federal banking agency” with respect to the Corporation as defined in Section
3(q) of the Federal Deposit Insurance Act (12 U.S.C. Section 1813(q)), or any successor provision.
(b) “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions are not authorized or obligated by
law, regulation or executive order to close in New York, New York.
(c) “Common Stock” means the common stock, par value $1.00 per share, of the Corporation.
(d) “Continuing Director” means (a) if an “interested shareholder” (as defined in Section 778 of the Michigan Business Corporation Act, as
the same shall be in effect from time to time) exists, any member of the board of directors of the Corporation who is not an interested shareholder or an “affiliate” or an “associate” (as such terms are defined in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended, as the same shall be in effect from time to time) of an interested shareholder and who was a member of the board of directors immediately prior to the time that an interested shareholder became an interested
shareholder, and any successor to a Continuing Director who is not an interested shareholder or an affiliate or associate of an interested shareholder and is recommended to succeed a Continuing Director by a majority of the Continuing Directors who
are then members of the board of directors; and (b) if an interested shareholder does not exist, any member of the board of directors.
(e) “Corporation” means TCF Financial Corporation, a Michigan corporation.
(f) “Depositary Company” shall have the meaning set forth in Section 6(d) hereof.
(g) “Dividend Payment Date” shall have the meaning set forth in Section 4(a) hereof.
(h) “Dividend Period” shall have the meaning set forth in Section 4(a) hereof.
(i) “DTC” means The Depository Trust Company, together with its successors and assigns.
(j) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation hereafter authorized over which Series C
Preferred Stock has preference or priority in the payment of dividends or in the distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(k) “Parity Stock” means any other class or series of stock of the Corporation that ranks on a parity with Series C Preferred Stock in the
payment of dividends and in the distribution of assets on any liquidation, dissolution or winding up of the Corporation.
(l) “Preferred Director” shall have the meaning set forth in Section 7(c)(i) hereof.
(m) “Redemption Price” shall have the meaning set forth in Section 6(a) hereof.
(n) “Regulatory Capital Treatment Event” means the good faith determination by the Corporation that, as a result of (i) any amendment to,
clarification of, or change (including any announced prospective change) in, the laws or regulations of the United States or any political subdivision of or in the United States that is enacted or becomes effective on or after September 7, 2017,
(ii) any proposed change in those laws or regulations that is announced or becomes effective on or after September 7, 2017, or (iii) any official administrative decision or judicial decision, or administrative action, or other official
pronouncement interpreting or applying those laws or regulations that is announced on or after September 7, 2017, there is more than an insubstantial risk that the Corporation will not be entitled to treat the full liquidation value of all shares
of Series C Preferred Stock then outstanding as “tier 1 capital” (or its equivalent) for purposes of the capital adequacy guidelines of the Board of Governors of the Federal Reserve System (or, as and if applicable, the capital adequacy guidelines
or regulations of any successor Appropriate Federal Banking Agency), as then in effect and applicable, for as long as any share of Series C Preferred Stock is outstanding.
-2-
(o) “Series C Preferred Stock” shall have the meaning set forth in Section 1 hereof.
(p) “Closing Date” means August 1, 2019.
Section 4. Dividends.
(a) Rate. Holders of Series C Preferred Stock shall be entitled to receive,
if, as and when declared by the board of directors of the Corporation or any duly authorized committee of the board of directors of the Corporation, but only out of assets legally available therefor, non-cumulative cash dividends on the liquidation
preference of $25,000 per share of Series C Preferred Stock, and no more, payable quarterly in arrears on each March 1, June 1, September 1 and December 1; provided, however, if any such day is not a Business Day, then payment of
any dividend otherwise payable on that date will be made on the next succeeding day that is a Business Day (without any interest or other payment in respect of such delay) (each such day on which dividends are payable a “Dividend Payment Date”),
commencing with the first such Dividend Payment Date to occur after the Closing Date. The period from and including the date of issuance of the Series C Preferred Stock or any Dividend Payment Date to but excluding the next Dividend Payment Date
is a “Dividend Period,” except that the initial Dividend Period shall commence on and include June 1, 2019. Dividends on each share of Series C Preferred Stock will accrue on the liquidation preference amount of $25,000 per share at a rate
per annum equal to 5.70%. The record date for payment of dividends on the Series C Preferred Stock shall be the 15th day of the calendar month immediately preceding the month during which the Dividend
Payment Date falls. The amount of dividends payable shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Notwithstanding any other provision hereof, dividends on the Series C Preferred Stock shall not be declared,
paid or set aside for payment to the extent such act would cause the Corporation to fail to comply with laws and regulations applicable thereto, including applicable capital adequacy guidelines.
(b) Non-Cumulative Dividends. Dividends on shares of Series C Preferred Stock shall be non-cumulative.
To the extent that any dividends payable on the shares of Series C Preferred Stock on any Dividend Payment Date are not declared and paid, in full or otherwise, on such Dividend Payment Date, then such unpaid dividends shall not cumulate and shall
cease to accrue and be payable and the Corporation shall have no obligation to pay, and the holders of Series C Preferred Stock shall have no right to receive, dividends accrued for such Dividend Period after the Dividend Payment Date for such
Dividend Period or interest with respect to such dividends, whether or not dividends are declared for any subsequent Dividend Period with respect to Series C Preferred Stock, any Parity Stock, any Junior Stock or any other class or series of
authorized preferred stock of the Corporation.
-3-
(c) Priority of Dividends. So long as any share of Series C Preferred Stock remains outstanding, unless
full dividends on all outstanding shares of Series C Preferred Stock for the then-current Dividend Period have been declared and paid in full or declared and a sum sufficient for the payment thereof has been set aside, (i) no dividend shall be
declared or paid or set aside for payment and no distribution shall be declared or made or set aside for payment on any Junior Stock, other than a dividend payable solely in Junior Stock, (ii) no shares of Junior Stock shall be repurchased,
redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior Stock, or the exchange or conversion of one share of Junior Stock for
or into another share of Junior Stock, and other than through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock), nor shall any monies be paid to or made available for a sinking fund for the redemption
of any such securities by the Corporation and (iii) no shares of Parity Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata
portion, of the Series C Preferred Stock and such Parity Stock except by conversion into or exchange for Junior Stock, during such dividend period. When dividends are not paid in full upon the shares of Series C Preferred Stock and any Parity
Stock, all dividends declared upon shares of Series C Preferred Stock and any Parity Stock shall be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that accrued dividends
for the then‑current Dividend Period per share on Series C Preferred Stock, and accrued dividends, including any accumulation, on any Parity Stock, bear to each other. No interest will be payable in respect of any dividend payment on shares of
Series C Preferred Stock that may be in arrears. If the board of directors of the Corporation or any duly authorized committee of the board of directors of the Corporation determines not to pay any dividend or a full dividend on a Dividend Payment
Date, the Corporation will provide, or cause to be provided, written notice to the holders of the Series C Preferred Stock prior to such date. Subject to the foregoing, and not otherwise, dividends (payable in cash, stock or otherwise) as may be
determined by the board of directors of the Corporation or any duly authorized committee of the board of directors of the Corporation may be declared and paid on any Junior Stock from time to time out of any assets legally available therefor, and
the shares of Series C Preferred Stock shall not be entitled to participate in any such dividend.
(a) Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation, holders of Series C Preferred Stock shall be entitled, out of assets legally available therefor, before any distribution or payment out of the assets of the Corporation may be made to or set aside for the holders of
any Junior Stock and subject to the rights of any holders of any class or series of securities ranking senior to or on parity with Series C Preferred Stock upon liquidation and the rights of the Corporation’s depositors and other creditors, to
receive in full a liquidating distribution in the amount of the liquidation preference of $25,000 per share, plus any authorized, declared and unpaid dividends, without accumulation of any undeclared dividends, to the date of liquidation. Holders
of Series C Preferred Stock shall not be entitled to any further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation other than what is expressly provided for in this Section
5.
(b) Partial Payment. If the assets of the Corporation are not sufficient to pay in full the liquidation
preference plus any authorized, declared and unpaid dividends to all holders of Series C Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series C Preferred Stock and to the holders of all Parity Stock shall
be paid pro rata in accordance with the respective amounts that would be payable on such shares if all amounts payable thereon were paid in full.
-4-
(c) Residual Distributions. If the liquidation preference plus any authorized, declared and unpaid
dividends has been paid in full to all holders of Series C Preferred Stock, the holders of shares of Series C Preferred Stock will not be entitled to any further participation in any distribution of assets by the Corporation.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the
sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Corporation shall not be deemed a voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Corporation, nor shall the merger, consolidation or any other business combination transaction of the Corporation into or with any other corporation or person or the merger, consolidation or any other business
combination transaction of any other corporation or person into or with the Corporation be deemed to be a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation.
(a) Optional Redemption. The Corporation, at the option of its board of
directors or any duly authorized committee of the board of directors of the Corporation, may redeem in whole or in part the shares of Series C Preferred Stock at the time outstanding, at any time on December 1, 2022 or any Dividend Payment Date
thereafter, upon notice given as provided in Section 6(b) below. The redemption price for shares of Series C Preferred Stock shall be $25,000 per share, plus any declared and unpaid dividends for prior Dividend Periods, without
accumulation of undeclared dividends (the “Redemption Price”). Notwithstanding the foregoing, within 90 days following the occurrence of a Regulatory Capital Treatment Event, the Corporation may, at its option, subject to the approval of
the Appropriate Federal Banking Agency, provide notice of its intent to redeem as provided in Section 6(b) below, and subsequently redeem, all (but not less than all) of the shares of Series C Preferred Stock at the time outstanding, at the
Redemption Price applicable on such date of redemption.
(b) Notice of Redemption. Notice of every redemption of shares of Series C
Preferred Stock shall be either (i) mailed by first class mail, postage prepaid, addressed to the holders of record of such shares to be redeemed at their respective last addresses appearing on the stock register of the Corporation or (ii)
transmitted by such other method approved by the Depositary Trust Company, in its reasonable discretion, to the holders of record of such shares to be redeemed. Such mailing or transmittal shall be at least 30 days and not more than 60 days before
the date fixed for redemption. Notwithstanding the foregoing, if the Series C Preferred Stock is held in book-entry form through DTC, the Corporation may give such notice in any manner permitted by DTC. Any notice mailed or transmitted as
provided in this Section 6(b) shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail or other transmission, or any defect in such notice or in the
mailing or transmittal thereof, to any holder of shares of Series C Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series C Preferred Stock. Each notice shall
state (i) the redemption date; (ii) the number of shares of Series C Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iii) the
Redemption Price; (iv) the place or places where the certificates for such shares are to be surrendered for payment of the Redemption Price; and (v) that dividends on the shares to be redeemed will cease to accrue on the redemption date.
-5-
(c) Partial Redemption. In case of any redemption of only part of the shares of Series C Preferred Stock
at the time outstanding, the shares of Series C Preferred Stock to be redeemed shall be selected either pro rata from the holders of record of Series C Preferred Stock in proportion to the number of shares of Series C Preferred Stock held by such
holders or in such other manner consistent with the rules and policies of the NASDAQ as the board of directors of the Corporation or any duly authorized committee of the board of directors of the Corporation may determine to be fair and equitable.
Subject to the provisions of this Section 6, the board of directors of the Corporation or any duly authorized committee of the board of directors shall have full power and authority to prescribe the terms and conditions upon which shares of
Series C Preferred Stock shall be redeemed from time to time.
(d) Effectiveness of Redemption. If notice of redemption has been duly given
and if on or before the redemption date specified in the notice all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other assets, in trust for the pro rata benefit of the holders of the shares
called for redemption, so as to be and continue to be available therefor, or deposited by the Corporation with a bank or trust company selected by the board of directors of the Corporation or any duly authorized committee of the board of directors
(the “Depositary Company”) in trust for the pro rata benefit of the holders of the shares called for redemption, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on
and after the redemption date all shares so called for redemption shall cease to be outstanding, all dividends with respect to such shares shall cease to accrue after such redemption date, and all rights with respect to such shares shall forthwith
on such redemption date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption from such bank or trust company at any time after the redemption date from the funds so deposited, without
interest. The Corporation shall be entitled to receive, from time to time, from the Depositary Company any interest accrued on such funds, and the holders of any shares called for redemption shall have no claim to any such interest. Any funds so
deposited and unclaimed at the end of three years from the redemption date shall, to the extent permitted by law, be released or repaid to the Corporation, and in the event of such repayment to the Corporation, the holders of record of the shares
so called for redemption shall be deemed to be unsecured creditors of the Corporation for an amount equivalent to the amount deposited as stated above for the redemption of such shares and so repaid to the Corporation, but shall in no event be
entitled to any interest.
Section 7. Voting Rights. The holders of Series C Preferred Stock will have no voting rights and will not be entitled to elect any directors, except
as expressly provided by law and except that:
-6-
(a) Supermajority Voting Rights-Amendments. Unless the vote or consent of
the holders of a greater number of shares shall then be required by law, the affirmative vote or consent of the holders of at least 66⅔% of all of the shares of the Series C Preferred Stock at the time outstanding, voting separately as a class,
shall be required to authorize any amendment of the Articles of Incorporation or of any certificate amendatory thereof or supplemental thereto (including any certificate of designations or any similar document relating to any series of preferred
stock) which will materially and adversely affect the powers, preferences, privileges or rights of the Series C Preferred Stock, taken as a whole; provided, however, that the following will not be deemed to adversely affect the
powers, preferences, privileges or rights of the Series C Preferred Stock: (i) any increase in the amount of the authorized or issued Series C Preferred Stock, (ii) any increase in the amount of authorized preferred stock of the Corporation, or
(iii) the creation and issuance, or an increase in the authorized or issued amount, of other series of preferred stock ranking equally with and/or junior to the Series C Preferred Stock with respect to the payment of dividends (whether such
dividends are cumulative or non-cumulative) and/or the distribution of assets upon liquidation, dissolution or winding up of the Corporation.
(b) Supermajority Voting Rights-Priority. Unless the vote or consent of the
holders of a greater number of shares shall then be required by law, the affirmative vote or consent of the holders of at least 66⅔% of all of the shares of the Series C Preferred Stock and all other Parity Stock, at the time outstanding, voting as
a single class without regard to series, shall be required to issue, authorize or increase the authorized amount of, or to issue or authorize any obligation or security convertible into or evidencing the right to purchase, any additional class or
series of stock ranking prior to the shares of the Series C Preferred Stock and all other Parity Stock as to dividends or the distribution of assets upon liquidation, dissolution or winding up of the Corporation.
(i) Voting Right. If and whenever dividends on the Series C Preferred Stock or any other
class or series of preferred stock that ranks on parity with the Series C Preferred Stock as to payment of dividends, and upon which voting rights equivalent to those granted by this Section 7(c) have been conferred and are exercisable,
have not been paid in an aggregate amount equal, as to any class or series, to at least six quarterly Dividend Periods (whether consecutive or not), the number of directors constituting the board of directors of the Corporation shall be increased
by two, and the holders of the Series C Preferred Stock (together with holders of any other class of the Corporation’s authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled
to vote for the election of directors if such default in dividends did not exist), shall have the right, voting separately as a single class without regard to series, to the exclusion of the holders of Common Stock, to elect two directors of the
Corporation to fill such newly created directorships (and to fill any vacancies in the terms of such directorships), provided that the board of directors of the Corporation shall at no time include more than two such directors. Each such
director elected by the holders of shares of Series C Preferred Stock and any other class or series of preferred stock that ranks on parity with the Series C Preferred Stock as to payment of dividends is a “Preferred Director.”
-7-
(ii) Election. The election of the Preferred Directors will take place at any annual meeting of shareholders or any
special meeting of the holders of Series C Preferred Stock and any other class or series of the Corporation’s stock that ranks on parity with Series C Preferred Stock as to payment of dividends and for which dividends have not been paid, called as
provided herein. At any time after the special voting power has vested pursuant to Section 7(c)(i) above, a majority of the Continuing Directors may, and within 20 days after the written request of any holder of Series C Preferred Stock
(addressed to the Continuing Directors at the Corporation’s principal office) must (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the shareholders, in which event such election
shall be held at such next annual or special meeting of shareholders), call a special meeting of the holders of Series C Preferred Stock, and any other class or series of preferred stock that ranks on parity with Series C Preferred Stock as to
payment of dividends and for which dividends have not been paid, for the election of the two directors to be elected by them as provided in Section 7(c)(iii) below. The Preferred Directors shall each be entitled to one vote per director on
any matter.
(iii) Notice for Special Meeting. Notice for a special meeting will be given in a similar
manner to that provided in the Corporation’s bylaws for a special meeting of the shareholders. The Preferred Directors elected at any such special meeting will hold office until the next annual meeting of the Corporation’s shareholders unless they
have been previously terminated or removed pursuant to Section 7(c)(iv). In case any vacancy in the office of a Preferred Director occurs (other than prior to the initial election of the Preferred Directors), the vacancy may be filled by
the written consent of the Preferred Director remaining in office, or if none remains in office, by a vote of the holders of the outstanding shares of Series C Preferred Stock (together with holders of any other class of the Corporation’s
authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not exist) to serve until the next annual
meeting of the shareholders.
(iv) Termination; Removal. Whenever full dividends have been paid regularly on the Series C
Preferred Stock and any other class or series of preferred stock that ranks on parity with Series C Preferred Stock as to payment of dividends, if any, for at least four consecutive Dividend Periods, then the right of the holders of Series C
Preferred Stock to elect such additional two directors will cease (subject to the same provisions for the vesting of the special voting rights in the case of any similar non-payment of dividends in respect of future Dividend Periods) and the term
of office of each Preferred Director so elected will immediately terminate and the number of directors constituting the Corporation’s board of directors will be automatically reduced accordingly. Any Preferred Director may be removed at any time
without cause by the holders of record of a majority of the outstanding shares of Series C Preferred Stock (together with holders of any other class of the Corporation’s authorized preferred stock having equivalent voting rights, whether or not the
holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not exist) when they have the voting rights described in this Section 7(c).
(d) Changes after Provision for Redemption. No vote or consent of the holders of Series C Preferred
Stock shall be required pursuant to Section 7(a), (b) or (c) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to such section, all outstanding Series C Preferred Stock
shall have been redeemed, or notice of redemption has been given and sufficient funds shall have been irrevocably deposited in trust to effect such redemption.
-8-
Section 8. Conversion. The holders of Series C Preferred Stock shall not have any rights to convert such Series C Preferred Stock into shares of any other class of capital stock
of the Corporation.
Section 9. Rank. Notwithstanding anything set forth in the Articles of Incorporation or this Certificate of Designations to the contrary, the board of directors of the Corporation
or any duly authorized committee of the board of directors of the Corporation, without the vote of the holders of the Series C Preferred Stock, may authorize and issue additional shares of Junior Stock, Parity Stock or, subject to the voting rights
granted in Section 7, any class of securities ranking senior to the Series C Preferred Stock as to dividends and the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation.
Section 10. Repurchase. Subject to the limitations imposed herein, the Corporation may purchase and sell Series C Preferred Stock from time to time to such extent, in such manner,
and upon such terms as the board of directors of the Corporation or any duly authorized committee of the board of directors of the Corporation may determine; provided, however, that the Corporation shall not use any of its funds for
any such purchase when there are reasonable grounds to believe that the Corporation is, or by such purchase would be, rendered insolvent.
Section 11. Unissued or Reacquired Shares. Shares of Series C Preferred Stock not issued or which have been issued, redeemed or otherwise purchased or acquired by the Corporation
shall be restored to the status of authorized but unissued shares of preferred stock without designation as to series.
Section 12. No Sinking Fund. Shares of Series C Preferred Stock are not subject to the operation of a sinking fund.
-9-
Exhibit 4.3
SECOND AMENDMENT TO DEPOSIT AGREEMENT
THIS SECOND AMENDMENT TO DEPOSIT AGREEMENT (the “Amendment”), dated as of June 9, 2021 (the “Effective Date”), by and among (i) Huntington Bancshares Incorporated, a Maryland corporation (“Huntington”), (ii) TCF Financial Corporation, a Michigan corporation (“TCF”), and (iii) COMPUTERSHARE INC., a Delaware corporation (“Computershare”), and its wholly owned subsidiary, COMPUTERSHARE TRUST
COMPANY, N.A., a federally chartered national association (the “Trust Company”), jointly as Depositary (the “Depositary”).
W I T N E S S E T H :
WHEREAS, TCF Financial Corporation, a Delaware corporation (“Legacy TCF”), and the Depositary entered into a Deposit Agreement, dated as of
September 14, 2017 (the “Original Deposit Agreement”), and TCF, Legacy TCF, and the Depositary entered into the First Amendment to Deposit Agreement, dated as of July 31, 2019 (the “First Amendment” and together with the Original Deposit Agreement, the “First Amended Deposit Agreement”). Capitalized terms used but
not defined in this Amendment shall have the meaning(s) ascribed thereto in the First Amended Deposit Agreement; and
WHEREAS, pursuant to the terms of the First Amended Deposit Agreement, TCF deposited 7,000 shares of its 5.70% Series C Non-Cumulative Perpetual Preferred Stock, no par value per share, with a
liquidation preference of $25,000 per share (the “Old Preferred Stock”) with the Depositary and issued receipts each representing 1/1,000th fractional interest in a share of Old Preferred
Stock (collectively, the “Old Receipts”); and
WHEREAS, on December 13, 2020, Huntington and TCF entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which
TCF will merge with and into Huntington, with Huntington continuing as the surviving entity (the “Merger”); and
WHEREAS, pursuant to the Merger Agreement, at the effective time of the Merger at 12:01 AM Eastern Time on June 9, 2021 (the “Effective Time”),
(i) each outstanding share of TCF’s Old Preferred Stock will be converted and exchanged into the right to receive, without interest, one share of Huntington’s newly created 5.70% Series I Non-Cumulative Perpetual Preferred Stock, par value $0.01 per
share, with a liquidation preference of $25,000 per share (the “New Preferred Stock”); and
WHEREAS, Section 4.6 of the First Amended Deposit Agreement provides that upon any merger of TCF, TCF may make certain adjustments and treat any securities received by the Depositary in exchange for
or upon conversion of or in respect of the Old Preferred Stock as new deposited securities so received in exchange for or upon conversion or in respect of such Old Preferred Stock; and
WHEREAS, pursuant to Section 6.1 of the First Amended Deposit Agreement, TCF and the Depositary wish to amend the First Amended Deposit Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree at the Effective Time as follows:
|
2.
|
Amendments to the First Amended Deposit Agreement.
|
|
a.
|
From and after the Effective Time, all references in the First Amended Deposit Agreement to (i) the term “Corporation” shall mean Huntington Bancshares Incorporated, a Maryland corporation, (ii) the term
“Certificate of Designations” shall be replaced by the term “Articles Supplementary”, which shall mean the Articles Supplementary filed with the State Department of Assessments and Taxation of Maryland on June 4, 2021 and effective June
8, 2021, establishing the 5.70% Series I Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share, with a liquidation preference of $25,000 per share, (iii) the term “Deposit Agreement” shall mean the Original Deposit
Agreement, as amended by the First Amendment and this Amendment, (iv) the terms “New York Stock Exchange, Inc.” and “New York Stock Exchange” shall be replaced by the term “Nasdaq Global Select Market” and (v) the term “Series C Preferred
Stock” shall be replaced by the term “Series I Preferred Stock”, which shall mean Huntington’s 5.70% Series I Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share, with a liquidation preference of $25,000 per share.
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b.
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Pursuant to Section 4.6 of the First Amended Deposit Agreement, following the Effective Time, the Old Receipts shall be exchanged for and replaced with new receipts substantially in the form attached hereto
as Exhibit A (the “New Receipts”) as provided in Section 3(b) of this Amendment, which New Receipts shall represent 1/1,000th fractional interest in a share of the New
Preferred Stock, with such adjustments as to future transactions, if any, as provided in the First Amended Deposit Agreement, as amended by this Amendment.
|
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c.
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The last paragraph of Section 2.2 of the First Amended Deposit Agreement is hereby amended by adding the following sentence to the end of such paragraph:
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“In lieu of such opinion, the Corporation may provide, or cause to be provided, one or more reliance letters to the Depositary stating that Depositary may rely on the legal opinions included as
Exhibit 5.1 (and, if applicable, Exhibit 5.2 et seq.) to a Registration Statement on Form S-4 filed by the Corporation to register the issuance of the New Preferred Stock and the Depositary Shares.”
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d.
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The first paragraph of Section 7.4 of the First Amended Deposit Agreement is hereby amended and restated in its entirety to read as follows:
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-2-
“Any and all notices to be given to the Corporation hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or
electronic mail, confirmed by letter, addressed to the Corporation at
Huntington Bancshares Incorporated
Huntington Center
41 South High Street
Columbus, Ohio 43287
Attention: General Counsel
Email: jana.j.litsey@huntington.com
or any other addresses of which the Corporation shall have notified the Depositary in writing.”
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e.
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Exhibit A of the First Amended Deposit Agreement is hereby deleted in its entirety and replaced by a new Exhibit A in the form of Exhibit A to this Amendment.
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f.
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Exhibit B of the First Amended Deposit Agreement is hereby deleted in its entirety and replaced by a new Exhibit B in the form of Exhibit B to this Amendment.
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3.
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Direction to Depositary.
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a.
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Upon receipt of 7,000 uncertificated shares of the New Preferred Stock via direct registration, the Depositary is hereby authorized and directed (a) as Transfer Agent and Registrar, to register the same in
the name of Computershare Inc. and Computershare Trust Company, N.A., jointly as Depositary, (b) deposit the New Preferred Stock pursuant to Section 2.2 of the First Amended Deposit Agreement in exchange for the Old Preferred Stock, (c)
deliver the Old Preferred Stock to Huntington, and (d) take all other action necessary or advisable in connection with the foregoing.
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b.
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Upon receipt of the Officer’s Certificate dated as of the date hereof and all other information required pursuant to Section 2.2 of the First Amended Deposit Agreement, the Depositary is hereby authorized
and directed to (a) execute the Global Registered Receipt evidencing the New Receipt and deliver the same to The Depositary Trust Company in exchange for the Old Receipt, (b) cancel the Old Receipt pursuant to Section 2.7 of the First
Amended Deposit Agreement, and (c) take all other action necessary or advisable in connection with the foregoing.
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4.
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Effectiveness. Upon the execution and delivery of a counterpart hereof by each of the parties hereto, this Amendment shall become effective at
the Effective Time. Except as expressly modified herein, the First Amended Deposit Agreement shall continue to be and shall remain, in full force and effect and the valid and binding obligation of the parties thereto (after giving effect
to the Merger) in accordance with its terms.
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-3-
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5.
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Termination of Merger Agreement. If for any reason the Merger Agreement is terminated in accordance with its terms, then this Amendment shall
automatically terminate and be of no further force and effect and the First Amended Deposit Agreement shall remain the same as it existed immediately prior to execution of this Amendment, without prejudice to any action taken prior to
such termination in compliance with the First Amended Deposit Agreement as amended hereby. Huntington will provide the Depositary with prompt written notice if the Merger Agreement is terminated.
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6.
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Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
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7.
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Counterparts. This Amendment may be executed in one or more counterparts (and such counterparts may be delivered in electronic format), and all
those counterparts together shall constitute one original document.
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8.
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Severability. If any provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be
invalid, illegal or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in full force and effect and shall in no way be effected, impaired or invalidated.
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9.
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Amendment. This Amendment may not be amended or modified except in the manner specified for an amendment of or modification to the First Amended
Deposit Agreement, as amended by this Amendment.
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10.
|
Descriptive Headings. Descriptive headings of the several sections of this Amendment are inserted for convenience of reference only and shall not
control or affect the meaning or construction of any of the provisions hereof.
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[Signature Page Follows]
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers, hereunto duly agreed and authorized, as of the Effective Date.
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HUNTINGTON BANCSHARES INCORPORATED,
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||
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a Maryland Corporation
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||
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By:
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/s/ Derek S. Meyer
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Name: Derek S. Meyer
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Title: Executive Vice President, Treasurer
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TCF FINANCIAL CORPORATION,
|
||
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a Michigan Corporation
|
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By:
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/s/ David T. Provost
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Name: David T. Provost
|
||
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Title: Chief Executive Officer
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COMPUTERSHARE INC. and
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COMPUTERSHARE TRUST COMPANY, N.A., acting jointly
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By:
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/s/ Michael J. Lang |
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Name: Michael J. Lang
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Title: Senior Vice President
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[Signature Page to Second Amendment to Deposit Agreement]
FORM OF GLOBAL RECEIPT
Unless this receipt is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to Huntington Bancshares Incorporated, a Maryland corporation, or its agent for
registration of transfer, exchange, or payment, and any receipt issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such
other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
DEPOSITARY SHARES
[ ]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING 1/1,000TH OF ONE SHARE
OF 5.70% SERIES I NON-CUMULATIVE PERPETUAL PREFERRED STOCK
OF
HUNTINGTON BANCSHARES INCORPORATED
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
CUSIP: 446150781
SEE REVERSE FOR CERTAIN DEFINITIONS
Dividend Payment Dates: Beginning September 1, 2021, each March 1, June 1, September 1 and December 1.
COMPUTERSHARE TRUST COMPANY, N.A. and COMPUTERSHARE INC., acting jointly as Depositary (the “Depositary”), hereby certify that Cede & Co. is the registered owner of [__________________]
DEPOSITARY SHARES (“Depositary Shares”), each Depositary Share representing 1/1,000th of one share of 5.70% Series I Non-Cumulative Perpetual Preferred Stock, par value
$0.01 per share, liquidation preference $25,000 per share (the “Stock”), of Huntington Bancshares Incorporated, a Maryland corporation (the “Corporation”), on deposit with the Depositary, subject to the terms and entitled to the benefits of the
Deposit Agreement, dated as of September 14, 2017, by and among TCF Financial Corporation, a Delaware corporation (“Legacy TCF”), on the one hand, and the Depositary, on the other hand (the “Original Deposit Agreement”), as amended by (i) the First
Amendment to Deposit Agreement, dated as of July 31, 2019, by and among Legacy TCF, TCF Financial Corporation, a Michigan corporation formerly known as Chemical Financial Corporation (“TCF”), and the Depositary (the “First Amendment”) and (ii) the
Second Amendment to Deposit Agreement, dated as of June 9, 2021, by and among the Corporation, TCF and the Depositary (together, with the Original Deposit Agreement and First Amendment, the “Deposit Agreement”). By accepting this Depositary Receipt,
the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Depositary Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement
unless it shall have been executed by the Depositary by the manual or facsimile signature of a duly authorized officer and, a Registrar for the Receipts (other than the Depositary) shall have been appointed, countersigned by such Registrar by the
manual or facsimile signature of a duly authorized officer thereof.
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Dated:
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||
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COMPUTERSHARE TRUST COMPANY, N.A., and
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||
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COMPUTERSHARE INC., acting jointly as Depositary
|
||
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By:
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||
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Authorized Officer
|
||
FORM OF REVERSE OF RECEIPT
HUNTINGTON BANCSHARES INCORPORATED
HUNTINGTON BANCSHARES INCORPORATED, A MARYLAND CORPORATION (THE “CORPORATION”) WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A
COPY OR SUMMARY OF THE ARTICLES SUPPLEMENTARY ESTABLISHING THE SERIES I NON-CUMULATIVE PERPETUAL PREFERRED STOCK OF THE CORPORATION. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
The Corporation will furnish without charge to each registered holder of receipts who so requests the powers, designations, preferences and relative, participating, optional or other special rights
of each class of stock or series thereof of the Corporation, and the qualifications, limitations or restrictions of such preferences and/or rights. Such request may be made to the Corporation or to the Registrar.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the form of ownership on the face of this certificate shall be construed as though they were written out in full according to applicable laws or regulations.
Abbreviations in addition to those appearing below may be used.
|
Abbreviation
|
Equivalent Phrase
|
Abbreviation
|
Equivalent Phrase
|
|
JT TEN
|
As joint tenants, with right of survivorship and not as tenants in common
|
TEN BY ENT
|
As tenants by the entireties
|
|
TEN IN COM
|
As tenants in common
|
UNIF GIFT MIN ACT
|
Uniform Gifts to Minors Act
|
|
Abbreviation
|
Equivalent Word
|
Abbreviation
|
Equivalent Word
|
Abbreviation
|
Equivalent Word
|
|
ADM
|
Administrator(s), Administratrix
|
EX
|
Executor(s), Executrix
|
PAR
|
Paragraph
|
|
AGMT
|
Agreement
|
FBO
|
For the benefit of
|
PL
|
Public Law
|
|
ART
|
Article
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FDN
|
Foundation
|
TR
|
(As) trustee(s), for, of
|
|
CH
|
Chapter
|
GDN
|
Guardian(s)
|
U
|
Under
|
|
CUST
|
Custodian for
|
GDNSHP
|
Guardianship
|
UA
|
Under agreement
|
|
DEC
|
Declaration
|
MIN
|
Minor(s)
|
UW
|
Under will of,
Of will of,
Under last will & testament
|
|
EST
|
Estate, of Estate of
|
For value received, ____________________hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the within Receipt, and do(es) hereby irrevocably constitute and appoint ________________________________ Attorney to transfer the said Depositary Shares on the books of the within
named Depositary with full power of substitution in the premises.
| Dated: |
|
|
NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every particular, without alteration or enlargement or any change whatsoever.
|
SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations, and credit unions with membership in an approved signature guarantee medallion
program), pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
EXHIBIT B
FORM OF OFFICER’S CERTIFICATE
I, [insert name], [insert title] of Huntington Bancshares Incorporated (the “Corporation”), hereby certify
that pursuant to the terms of the Articles Supplementary, filed with the State Department of Assessments and Taxation of Maryland on June 4, 2021 and effective June 8, 2021 (the “Articles Supplementary”), and pursuant to resolutions of the
Board of Directors of the Corporation (the “Board”) adopted at a meeting of the Board on December 13, 2020, the Corporation has established the 5.70% Series I Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share (the “Series
I Preferred Stock”) which the Corporation desires to deposit with the Depositary for the purposes of being subject to the terms and conditions of the Deposit Agreement, dated as of September 14, 2017, by and among TCF Financial Corporation, a
Delaware corporation (“Legacy TCF”), on the one hand, and Computershare Trust Company, N.A. and Computershare Inc., jointly as Depositary, on the other hand (the “Original Deposit Agreement”), as amended by (i) the First Amendment to
Deposit Agreement, dated as of July 31, 2019, by and among Legacy TCF, TCF Financial Corporation, a Michigan corporation formerly known as Chemical Financial Corporation (“TCF”), and the Depositary (the “First Amendment”) and (ii) the
Second Amendment to Deposit Agreement, dated as of June 9, 2021, by and among the Corporation, TCF and the Depositary (together with the Original Deposit Agreement and First Amendment, the “Deposit Agreement”). In connection therewith, the
Board or a duly authorized committee thereof has authorized the terms and conditions with respect to the Series I Preferred Stock as described in the Articles Supplementary attached as Annex A hereto. Any terms of the Series I Preferred
Stock that are not so described in the Articles Supplementary and any terms of the Receipts representing such Series I Preferred Stock that are not described in the Deposit Agreement are described below:
| Aggregate Number of shares of Series I Preferred Stock issued as of the Effective Time: |
|
| CUSIP Number for Receipts: |
|
|
| Denomination of Depositary Share per share of Series I Preferred Stock (if different than 1/1000th of a share of Series I Preferred Stock): |
|
| Redemption Provisions (if different than as set forth in the Deposit Agreement): |
|
Name of Global Receipt Depositary: The Depository Trust Company
Name of Registrar with Respect to the Receipts (if other than Computershare Trust Company, N.A.):
|
|
|
Name of Registrar, Dividend Disbursing Agent, and Redemption Agent with Respect to the Series I Preferred Stock (if other than Computershare Trust Company, N.A.):
|
|
|
| Special terms and conditions: |
|
| Closing date: |
|
|
All capitalized terms used but not defined herein shall have such meaning as ascribed thereto in the Deposit Agreement.
Date: [___________________], 2021
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
Annex A
Articles Supplementary
ARTICLES SUPPLEMENTARY
DESIGNATING THE RIGHTS AND PREFERENCES
OF
5.70% SERIES I NON-CUMULATIVE PERPETUAL PREFERRED STOCK,
PAR VALUE $0.01 PER SHARE
OF
HUNTINGTON BANCSHARES INCORPORATED
HUNTINGTON BANCSHARES INCORPORATED, a Maryland corporation (hereinafter called the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: Under a power contained in Article Fifth of the charter of the Corporation (the “Charter”), the board of directors of the Corporation (the “Board of Directors”) and a duly
authorized committee thereof (the “Committee”), by duly adopted resolutions, classified and designated 7,000 shares of the authorized but unissued serial preferred stock of the Corporation, par value $0.01 per share (the “Serial
Preferred Stock”), as 5.70% Series I Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share, with the following preferences and rights, voting powers, restrictions, limitations as to dividends and other distributions,
qualifications, and terms and conditions of redemption, which, upon any restatement of the Charter, shall become part of Article Fifth of the Charter, with any necessary or appropriate renumbering or relettering of the sections or subsections
hereof.
5.70% SERIES I NON-CUMULATIVE PERPETUAL PREFERRED STOCK
Section 1. Designation. The designation of the series of preferred stock shall be 5.70% Series I Non‑Cumulative Perpetual Preferred Stock (hereinafter referred to as the “Series
I Preferred Stock”). Each share of Series I Preferred Stock shall be identical in all respects to every other share of Series I Preferred Stock. Series I Preferred Stock will rank, with respect to the payment of dividends and the
distribution of assets in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, (1) on a parity with the Corporation’s Floating Rate Series B Non-Cumulative Perpetual Preferred Stock,
par value $0.01 per share and liquidation value per share of $1,000, the Corporation’s 5.875% Series C Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $1,000, the Corporation’s 6.250% Series
D Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $1,000, the Corporation’s 5.700% Series E Fixed-to-Floating Rate Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and
liquidation value per share of $100,000, 5.625% Series F Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $100,000, 4.450% Series G Non-Cumulative Perpetual Preferred Stock, par value $0.01
per share and liquidation value per share of $100,000, 4.500% Series H Non-Cumulative Perpetual Preferred Stock, par value $0.01 per share and liquidation value per share of $1,000, and each class or series of Serial Preferred Stock that the
Corporation may issue in the future, the terms of which expressly provide that such class or series will rank on a parity with the Series I Preferred Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the
Corporation (collectively, the “Parity Stock”) and (2) senior to the Common Stock and each other class or series of Serial Preferred Stock the Corporation may issue in the future, the terms of which do not expressly provide that it ranks
on a parity with or senior to the Series I Preferred Stock as to dividend rights and rights on liquidation, winding-up and dissolution of the Corporation (the “Junior Stock”).
Section 2. Number of Shares. The number of authorized shares of Series I Preferred Stock shall be 7,000. Such number may from time to time be increased (but not in excess of the
total number of authorized shares of preferred stock) or decreased (but not below the number of shares of Series I Preferred Stock then outstanding) by further resolution duly adopted by the Board of Directors or any duly authorized committee of
the Board of Directors and in accordance with applicable law. All additional shares of Series I Preferred Stock shall be deemed to form a single series with the Series I Preferred Stock, provided that any such additional shares of Series
I Preferred Stock are not treated as “disqualified preferred stock” within the meaning of Section 1059(f)(2) of the U.S. Internal Revenue Code of 1986, as amended, and such additional shares of Series I Preferred Stock are otherwise treated as
fungible with the Series I Preferred Stock authorized under this Section 2 for U.S. federal income tax purposes. The Corporation shall have the authority to issue fractional shares of Series I Preferred Stock.
Section 3. Definitions. As used herein with respect to Series I Preferred Stock:
(a) “Appropriate Federal Banking Agency” means the “appropriate Federal banking agency” with respect to the Corporation as defined in Section 3(q) of the Federal Deposit Insurance
Act (12 U.S.C. Section 1813(q)), or any successor provision.
(b) “Business Day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions are not authorized or obligated by law, regulation or executive order to
close in New York, New York.
(c) “Closing Date” means June 9, 2021.
(d) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
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(e) “Continuing Director” means (a) if an “interested stockholder” (as defined in Section 3-601 of the Maryland General Corporation Law, as the same shall be in effect from time to
time) exists, any member of the Board of Directors who is not an interested stockholder or an “affiliate” or an “associate” (as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, as the same shall be in
effect from time to time) of an interested stockholder and who was a member of the Board of Directors immediately prior to the time that an interested stockholder became an interested stockholder, and any successor to a Continuing Director who is
not an interested stockholder or an affiliate or associate of an interested stockholder and is recommended to succeed a Continuing Director by a majority of the Continuing Directors who are then members of the Board of Directors; and (b) if an
interested stockholder does not exist, any member of the Board of Directors.
(f) “Corporation” means Huntington Bancshares Incorporated, a Maryland corporation.
(g) “Depositary Company” shall have the meaning set forth in Section 6(d) hereof.
(h) “Dividend Payment Date” shall have the meaning set forth in Section 4(a) hereof.
(i) “Dividend Period” shall have the meaning set forth in Section 4(a) hereof.
(j) “DTC” means The Depository Trust Company, together with its successors and assigns.
(k) “Preferred Director” shall have the meaning set forth in Section 7(c)(i) hereof.
(l) “Redemption Price” shall have the meaning set forth in Section 6(a) hereof.
(m) “Regulatory Capital Treatment Event” means the good faith determination by the Corporation that, as a result of (i) any amendment to, clarification of, or change (including any
announced prospective change) in, the laws or regulations of the United States or any political subdivision of or in the United States that is enacted or becomes effective on or after September 7, 2017, (ii) any proposed change in those laws or
regulations that is announced or becomes effective on or after September 7, 2017, or (iii) any official administrative decision or judicial decision, or administrative action, or other official pronouncement interpreting or applying those laws or
regulations that is announced on or after September 7, 2017, there is more than an insubstantial risk that the Corporation will not be entitled to treat the full liquidation value of all shares of Series I Preferred Stock then outstanding as
“tier 1 capital” (or its equivalent) for purposes of the capital adequacy guidelines of the Board of Governors of the Federal Reserve System (or, as and if applicable, the capital adequacy guidelines or regulations of any successor Appropriate
Federal Banking Agency), as then in effect and applicable, for as long as any share of Series I Preferred Stock is outstanding.
(n) “Series I Preferred Stock” shall have the meaning set forth in Section 1 hereof.
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Section 4. Dividends.
(a) Rate. Holders of Series I Preferred Stock shall be entitled to receive, if, as and when declared by the Board of Directors or any duly
authorized committee of the Board of Directors, but only out of assets legally available therefor, non-cumulative cash dividends on the liquidation preference of $25,000 per share of Series I Preferred Stock, and no more, payable quarterly in
arrears on each March 1, June 1, September 1 and December 1; provided, however, if any such day is not a Business Day, then payment of any dividend otherwise payable on that date will be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect of such delay) (each such day on which dividends are payable a “Dividend Payment Date”), commencing with the first such Dividend Payment Date to occur after the Closing Date.
The period from and including the date of issuance of the Series I Preferred Stock or any Dividend Payment Date to but excluding the next Dividend Payment Date is a “Dividend Period,” except that the initial Dividend Period shall commence
on and include June 1. Dividends on each share of Series I Preferred Stock will accrue on the liquidation preference amount of $25,000 per share at a rate per annum equal to 5.70%. The record date for
payment of dividends on the Series I Preferred Stock shall be the 15th day of the calendar month immediately preceding the month during which the Dividend Payment Date falls or such other date, not exceeding 30 days before the applicable Dividend
Payment Date, as shall be fixed by the Board of Directors. The amount of dividends payable shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Notwithstanding any other provision hereof, dividends on the Series
I Preferred Stock shall not be declared, paid or set aside for payment to the extent such act would cause the Corporation to fail to comply with laws and regulations applicable thereto, including applicable capital adequacy guidelines.
(b) Non-Cumulative Dividends. Dividends on shares of Series I Preferred Stock shall be non-cumulative. To the extent that any dividends payable
on the shares of Series I Preferred Stock on any Dividend Payment Date are not declared and paid, in full or otherwise, on such Dividend Payment Date, then such unpaid dividends shall not cumulate and shall cease to accrue and be payable and the
Corporation shall have no obligation to pay, and the holders of Series I Preferred Stock shall have no right to receive, dividends accrued for such Dividend Period after the Dividend Payment Date for such Dividend Period or interest with respect
to such dividends, whether or not dividends are declared for any subsequent Dividend Period with respect to Series I Preferred Stock, any Parity Stock, any Junior Stock or any other class or series of authorized preferred stock of the
Corporation.
(c) Priority of Dividends. So long as any share of Series I Preferred Stock remains outstanding, unless full dividends on all outstanding shares
of Series I Preferred Stock for the then-current Dividend Period have been declared and paid in full or declared and a sum sufficient for the payment thereof has been set aside, (i) no dividend shall be declared or paid or set aside for payment
and no distribution shall be declared or made or set aside for payment on any Junior Stock, other than a dividend payable solely in Junior Stock, (ii) no shares of Junior Stock shall be repurchased, redeemed or otherwise acquired for
consideration by the Corporation, directly or indirectly (other than as a result of a reclassification of Junior Stock for or into other Junior Stock, or the exchange or conversion of one share of Junior Stock for or into another share of Junior
Stock, and other than through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock), nor shall any monies be paid to or made available for a sinking fund for the redemption of any such securities by the
Corporation and (iii) no shares of Parity Stock shall be repurchased, redeemed or otherwise acquired for consideration by the Corporation otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Series I Preferred
Stock and such Parity Stock except by conversion into or exchange for Junior Stock, during such dividend period. When dividends are not paid in full upon the shares of Series I Preferred Stock and any Parity Stock, all dividends declared upon
shares of Series I Preferred Stock and any Parity Stock shall be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that accrued dividends for the then‑current Dividend
Period per share on Series I Preferred Stock, and accrued dividends, including any accumulation, on any Parity Stock, bear to each other. No interest will be payable in respect of any dividend payment on shares of Series I Preferred Stock that
may be in arrears. If the Board of Directors or any duly authorized committee of the Board of Directors determines not to pay any dividend or a full dividend on a Dividend Payment Date, the Corporation will provide, or cause to be provided,
written notice to the holders of the Series I Preferred Stock prior to such date. Subject to the foregoing, and not otherwise, dividends (payable in cash, stock or otherwise) as may be determined by the Board of Directors or any duly authorized
committee of the Board of Directors may be declared and paid on any Junior Stock from time to time out of any assets legally available therefor, and the shares of Series I Preferred Stock shall not be entitled to participate in any such dividend.
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Section 5. Liquidation Rights.
(a) Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, holders
of Series I Preferred Stock shall be entitled, out of assets legally available therefor, before any distribution or payment out of the assets of the Corporation may be made to or set aside for the holders of any Junior Stock and subject to the
rights of any holders of any class or series of securities ranking senior to or on parity with Series I Preferred Stock upon liquidation and the rights of the Corporation’s depositors and other creditors, to receive in full a liquidating
distribution in the amount of the liquidation preference of $25,000 per share, plus any authorized, declared and unpaid dividends, without accumulation of any undeclared dividends, to the date of liquidation. Holders of Series I Preferred Stock
shall not be entitled to any further payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation other than what is expressly provided for in this Section 5.
(b) Partial Payment. If the assets of the Corporation are not sufficient to pay in full the liquidation preference plus any authorized, declared
and unpaid dividends to all holders of Series I Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series I Preferred Stock and to the holders of all Parity Stock shall be paid pro rata in accordance with the
respective amounts that would be payable on such shares if all amounts payable thereon were paid in full.
(c) Residual Distributions. If the liquidation preference plus any authorized, declared and unpaid dividends has been paid in full to all holders
of Series I Preferred Stock, the holders of shares of Series I Preferred Stock will not be entitled to any further participation in any distribution of assets by the Corporation.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5, the sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration) of all or substantially all of the property and assets of the Corporation shall not be deemed a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the
Corporation, nor shall the merger, consolidation or any other business combination transaction of the Corporation into or with any other corporation or person or the merger, consolidation or any other business combination transaction of any other
corporation or person into or with the Corporation be deemed to be a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation.
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Section 6. Redemption.
(a) Optional Redemption. The Corporation, at the option of its Board of Directors or any duly authorized committee of the Board of Directors, may
redeem in whole or in part the shares of Series I Preferred Stock at the time outstanding, at any time on December 1, 2022 or any Dividend Payment Date thereafter, upon notice given as provided in Section 6(b) below. The redemption price
for shares of Series I Preferred Stock shall be $25,000 per share, plus any declared and unpaid dividends for prior Dividend Periods, without accumulation of undeclared dividends (the “Redemption Price”). Notwithstanding the foregoing,
within 90 days following the occurrence of a Regulatory Capital Treatment Event, the Corporation may, at its option, subject to the approval of the Appropriate Federal Banking Agency, provide notice of its intent to redeem as provided in Section
6(b) below, and subsequently redeem, all (but not less than all) of the shares of Series I Preferred Stock at the time outstanding, at the Redemption Price applicable on such date of redemption.
(b) Notice of Redemption. Notice of every redemption of shares of Series I Preferred Stock shall be either (i) mailed by first class mail,
postage prepaid, addressed to the holders of record of such shares to be redeemed at their respective last addresses appearing on the stock register of the Corporation or (ii) transmitted by such other method approved by the Depositary Trust
Company, in its reasonable discretion, to the holders of record of such shares to be redeemed. Such mailing or transmittal shall be at least 30 days and not more than 60 days before the date fixed for redemption. Notwithstanding the foregoing,
if the Series I Preferred Stock is held in book-entry form through DTC, the Corporation may give such notice in any manner permitted by DTC. Any notice mailed or transmitted as provided in this Section 6(b) shall be conclusively presumed
to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail or other transmission, or any defect in such notice or in the mailing or transmittal thereof, to any holder of shares of Series
I Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series I Preferred Stock. Each notice shall state (i) the redemption date; (ii) the number of shares of Series
I Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iii) the Redemption Price; (iv) the place or places where the certificates for
such shares are to be surrendered for payment of the Redemption Price; and (v) that dividends on the shares to be redeemed will cease to accrue on the redemption date.
(c) Partial Redemption. In case of any redemption of only part of the shares of Series I Preferred Stock at the time outstanding, the shares of
Series I Preferred Stock to be redeemed shall be selected either pro rata from the holders of record of Series I Preferred Stock in proportion to the number of shares of Series I Preferred Stock held by such holders or in such other manner
consistent with the rules and policies of the NASDAQ as the Board of Directors or any duly authorized committee of the Board of Directors may determine to be fair and equitable. Subject to the provisions of this Section 6, the Board of
Directors or any duly authorized committee of the Board of Directors shall have full power and authority to prescribe the terms and conditions upon which shares of Series I Preferred Stock shall be redeemed from time to time.
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(d) Effectiveness of Redemption. If notice of redemption has been duly given and if on or before the redemption date specified in the notice all
funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other assets, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available
therefor, or deposited by the Corporation with a bank or trust company selected by the Board of Directors or any duly authorized committee of the Board of Directors (the “Depositary Company”) in trust for the pro rata benefit of the
holders of the shares called for redemption, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the redemption date all shares so called for redemption shall
cease to be outstanding, all dividends with respect to such shares shall cease to accrue after such redemption date, and all rights with respect to such shares shall forthwith on such redemption date cease and terminate, except only the right of
the holders thereof to receive the amount payable on such redemption from such bank or trust company at any time after the redemption date from the funds so deposited, without interest. The Corporation shall be entitled to receive, from time to
time, from the Depositary Company any interest accrued on such funds, and the holders of any shares called for redemption shall have no claim to any such interest. Any funds so deposited and unclaimed at the end of three years from the
redemption date shall, to the extent permitted by law, be released or repaid to the Corporation, and in the event of such repayment to the Corporation, the holders of record of the shares so called for redemption shall be deemed to be unsecured
creditors of the Corporation for an amount equivalent to the amount deposited as stated above for the redemption of such shares and so repaid to the Corporation, but shall in no event be entitled to any interest.
Section 7. Voting Rights. The holders of Series I Preferred Stock will have no voting rights and will not be entitled to elect any directors, except as expressly provided by
law and except that:
(a) Supermajority Voting Rights-Amendments. Unless the vote or consent of the holders of a greater number of shares shall then be required by
law, the affirmative vote or consent of the holders of at least 66⅔% of all of the shares of the Series I Preferred Stock at the time outstanding, voting separately as a class, shall be required to authorize any amendment of the Charter or of any
certificate amendatory thereof or supplemental thereto (including any articles supplementary or any similar document relating to any series of preferred stock) which will materially and adversely affect the powers, preferences, privileges or
rights of the Series I Preferred Stock, taken as a whole; provided, however, that the following will not be deemed to adversely affect the powers, preferences, privileges or rights of the Series I Preferred Stock: (i) any
increase in the amount of the authorized or issued Series I Preferred Stock, (ii) any increase in the amount of authorized preferred stock of the Corporation, or (iii) the creation and issuance, or an increase in the authorized or issued amount,
of other series of preferred stock ranking equally with and/or junior to the Series I Preferred Stock with respect to the payment of dividends (whether such dividends are cumulative or non-cumulative) and/or the distribution of assets upon
liquidation, dissolution or winding up of the Corporation.
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(b) Supermajority Voting Rights-Priority. Unless the vote or consent of the holders of a greater number of shares shall then be required by law,
the affirmative vote or consent of the holders of at least 66⅔% of all of the shares of the Series I Preferred Stock and all other Parity Stock, at the time outstanding, voting as a single class without regard to series, shall be required to
issue, authorize or increase the authorized amount of, or to issue or authorize any obligation or security convertible into or evidencing the right to purchase, any additional class or series of stock ranking prior to the shares of the Series I
Preferred Stock and all other Parity Stock as to dividends or the distribution of assets upon liquidation, dissolution or winding up of the Corporation.
(c) Special Voting Right.
(i) Voting Right. If and whenever dividends on the Series I Preferred Stock or any other class or series of preferred stock that ranks on parity with the
Series I Preferred Stock as to payment of dividends, and upon which voting rights equivalent to those granted by this Section 7(c) have been conferred and are exercisable, have not been paid in an aggregate amount equal, as to any class
or series, to at least six quarterly Dividend Periods (whether consecutive or not), the number of directors constituting the Board of Directors shall be increased by two, and the holders of the Series I Preferred Stock (together with holders of
any other class of the Corporation’s authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not
exist), shall have the right, voting separately as a single class without regard to series, to the exclusion of the holders of Common Stock, to elect two directors of the Corporation to fill such newly created directorships (and to fill any
vacancies in the terms of such directorships), provided that the Board of Directors shall at no time include more than two such directors. Each such director elected by the holders of shares of Series I Preferred Stock and any other
class or series of preferred stock that ranks on parity with the Series I Preferred Stock as to payment of dividends is a “Preferred Director.”
(ii) Election. The election of the Preferred Directors will take place at any annual meeting of stockholders or any special meeting of the holders of Series I
Preferred Stock and any other class or series of the Corporation’s stock that ranks on parity with Series I Preferred Stock as to payment of dividends and for which dividends have not been paid, called as provided herein. At any time after the
special voting power has vested pursuant to Section 7(c)(i) above, a majority of the Continuing Directors may, and within 20 days after the written request of any holder of Series I Preferred Stock (addressed to the Continuing Directors
at the Corporation’s principal office) must (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or
special meeting of stockholders), call a special meeting of the holders of Series I Preferred Stock, and any other class or series of preferred stock that ranks on parity with Series I Preferred Stock as to payment of dividends and for which
dividends have not been paid, for the election of the two directors to be elected by them as provided in Section 7(c)(iii) below. The Preferred Directors shall each be entitled to one vote per director on any matter.
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(iii) Notice for Special Meeting. Notice for a special meeting will be given in a similar manner to that provided in the Corporation’s bylaws for a special
meeting of the stockholders. The Preferred Directors elected at any such special meeting will hold office until the next annual meeting of the Corporation’s stockholders unless they have been previously terminated or removed pursuant to Section
7(c)(iv). In case any vacancy in the office of a Preferred Director occurs (other than prior to the initial election of the Preferred Directors), the vacancy may be filled by the written consent of the Preferred Director remaining in
office, or if none remains in office, by a vote of the holders of the outstanding shares of Series I Preferred Stock (together with holders of any other class of the Corporation’s authorized preferred stock having equivalent voting rights,
whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not exist) to serve until the next annual meeting of the stockholders.
(iv) Termination; Removal. Whenever full dividends have been paid regularly on the Series I Preferred Stock and any other class or series of preferred stock
that ranks on parity with Series I Preferred Stock as to payment of dividends, if any, for at least four consecutive Dividend Periods, then the right of the holders of Series I Preferred Stock to elect such additional two directors will cease
(subject to the same provisions for the vesting of the special voting rights in the case of any similar non-payment of dividends in respect of future Dividend Periods) and the term of office of each Preferred Director so elected will immediately
terminate and the number of directors constituting the Corporation’s board of directors will be automatically reduced accordingly. Any Preferred Director may be removed at any time without cause by the holders of record of a majority of the
outstanding shares of Series I Preferred Stock (together with holders of any other class of the Corporation’s authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled to vote
for the election of directors if such default in dividends did not exist) when they have the voting rights described in this Section 7(c).
(d) Changes after Provision for Redemption. No vote or consent of the holders of Series I Preferred Stock shall be required pursuant to Section
7(a), (b) or (c) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to such section, all outstanding Series I Preferred Stock shall have been redeemed, or notice of
redemption has been given and sufficient funds shall have been irrevocably deposited in trust to effect such redemption.
Section 8. Conversion. The holders of Series I Preferred Stock shall not have any rights to convert such Series I Preferred Stock into shares of any other class of capital stock
of the Corporation.
Section 9. Rank. Notwithstanding anything set forth in the Charter or these Articles Supplementary to the contrary, the Board of Directors or any duly authorized committee of the
Board of Directors, without the vote of the holders of the Series I Preferred Stock, may authorize and issue additional shares of Junior Stock, Parity Stock or, subject to the voting rights granted in Section 7, any class of securities
ranking senior to the Series I Preferred Stock as to dividends and the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.
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Section 10. Repurchase. Subject to the limitations imposed herein, the Corporation may purchase and sell Series I Preferred Stock from time to time to such extent, in such manner,
and upon such terms as the Board of Directors or any duly authorized committee of the Board of Directors may determine; provided, however, that the Corporation shall not use any of its funds for any such purchase when there are
reasonable grounds to believe that the Corporation is, or by such purchase would be, rendered insolvent.
Section 11. Unissued or Reacquired Shares. Shares of Series I Preferred Stock not issued or which have been issued, redeemed or otherwise purchased or acquired by the Corporation
shall be restored to the status of authorized but unissued shares of preferred stock without designation as to series.
Section 12. No Sinking Fund. Shares of Series I Preferred Stock are not subject to the operation of a sinking fund.
SECOND: The Series I Preferred Stock has been classified and designated by the Board of Directors and the Committee, under the authority contained in the Charter.
THIRD: These Articles Supplementary have been approved by the Board of Directors and the Committee in the manner and by the vote required by law.
FOURTH: These Articles Supplementary shall become effective at 11:59 p.m., Eastern Time, on June 8, 2021.
FIFTH: The undersigned Chairman, President and Chief Executive Officer of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all
matters or facts required to be verified under oath, the undersigned Officer acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under
the penalties of perjury.
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IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in its name and on its behalf by its Chairman, President and Chief Executive Officer and attested to by
its duly authorized officer on this 4th day of June, 2021.
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ATTEST:
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HUNTINGTON BANCSHARES INCORPORATED
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By:
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/s/ Erin F. Siegfried
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By:
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/s/ Stephen D. Steinour
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Name:
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Erin F. Siegfried
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Name:
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Stephen D. Steinour
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Title:
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Assistant Secretary
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Title:
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Chairman, President and Chief Executive Officer
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FOR IMMEDIATE RELEASE
June 9, 2021
Investor Relations contact: Mark Muth
(mark.muth@huntington.com) 614-480-4720
Media contact: Randi Berris
(randi.berris@huntington.com) 248-608-5239
HUNTINGTON COMPLETES MERGER WITH TCF, ADDS FIVE NEW BOARD MEMBERS
Huntington Now Top 25 U.S. Bank Holding Company
COLUMBUS, Ohio – Huntington Bancshares Incorporated (Nasdaq: HBAN; “Huntington”) today announced it has closed its merger with TCF
Financial Corporation (“TCF”), creating a Top 25 U.S. bank holding company.
The combination positions Huntington for enhanced profitability and scale, revenue growth opportunities, significant cost synergies, and a strengthened
market position, all driving increased long-term shareholder value.
“We are pleased to announce the completion of this combination with TCF and look forward to welcoming our new colleagues and
customers to Huntington. We also look forward to strengthening our community impact through the combined bank,” said Stephen D. Steinour, chairman, president and CEO of Huntington. “This is a significant step forward for Huntington in our vision
to build the leading People-First, Digitally Powered bank in the nation.”
The combined company has approximately $175 billion in assets, $142 billion in deposits, and $116
billion in loans based on March 31, 2021, balances. Huntington now operates more than 1,100 total branches1. The combination also marks Huntington’s entrance into attractive markets in
Minnesota and Colorado, as well as new businesses, including inventory finance lending. The headquarters for the Commercial Bank is in Detroit; Columbus remains the headquarters for the holding company and the Consumer Bank.
“Columbus, Detroit, and the Twin Cities are all very important markets
for the future of Huntington. We want a broad senior management presence, not only to lead our efforts with colleagues and support our customers, but also to strengthen the communities we serve,” Steinour said. “Our business is about having the
right people in the right places. We will continue to have a distributed leadership model to maximize our local advantage across the footprint.”
In connection with the merger, Huntington’s Board of Directors appointed five new directors, all former directors of TCF:
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Richard H. King, Managing Director of Operations - Retired, Thomson Reuters Corporation;
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Barbara L. McQuade, Law Professor, University of Michigan;
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1 Excludes the previously announced divestiture of 14 Michigan branches and the previously announced consolidation of 189 branches in Michigan and Ohio.
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Roger J. Sit, Chief Executive Officer, Global Chief Investment Officer and Director, Sit Investment Associates;
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Jeffrey L. Tate, Executive Vice President and Chief Financial Officer, Leggett & Platt; and
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Gary Torgow, Chairman of the Board of Directors, The Huntington National Bank.
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"Huntington is privileged to add these five directors with their unique skillsets and impressive experience to our Board. Our Board is comprised of a deeply engaged, diverse group of directors with a shared vision and shared values. We are committed to delivering top quartile financial performance to our
shareholders and continuing to support all of our stakeholders," said Steinour.
Both Huntington and TCF customers will continue to bank as they normally do at their existing branches. TCF customer accounts will be converted to
Huntington's systems in the fourth quarter, and TCF customers will receive detailed information about the pending account conversions in the coming weeks. Huntington customers will not be impacted by the conversion.
At the effective time of the merger on June 9, 2021, each share of TCF common stock was converted into the right to receive 3.0028 shares of Huntington
common stock. TCF shareholders will receive cash in lieu of fractional shares, in accordance with the merger agreement. Former TCF common stock shareholders who received Huntington common shares in the merger and who continue to own those shares
through the June 17, 2021 record date, will receive Huntington’s previously announced dividend of $0.15 per common share payable on July 1, 2021.
Each share of 5.70% Series C Non-Cumulative Perpetual Preferred Stock, no par value, of TCF (“TCF series C preferred stock”) was converted into the right to
receive a share of 5.70% Non-Cumulative Perpetual Preferred Stock Series I, par value $0.01 per share, of Huntington (“Huntington Series I preferred stock”) at the effective time of the merger. Each outstanding TCF depositary share (Nasdaq: TCFCP)
that represented a 1/1000th interest in a share of the TCF series C preferred stock was converted into a Huntington depositary share (Nasdaq: HBANM) representing a 1/1000th interest in a share of Huntington Series I preferred stock. The Board also
declared and set aside a quarterly cash dividend on its newly created Huntington Series I preferred stock of $356.25 per share (equivalent to $0.35625 per depositary share) payable September 1, 2021, to holders of record on August 15, 2021.
About Huntington
Huntington Bancshares Incorporated (Nasdaq: HBAN) is a $175 billion asset regional bank holding company headquartered in
Columbus, Ohio. Founded in 1866, The Huntington National Bank and its affiliates provide consumers, small and middle-market businesses, corporations, municipalities, and other organizations with a comprehensive suite of banking, payments, wealth
management, and risk management products and services. Huntington operates more than 1,100 branches in 12 states, with certain businesses operating in extended geographies. Visit Huntington.com for more information.
Caution regarding Forward-Looking Statements
This communication may contain certain forward-looking statements, including, but not limited to, certain plans, expectations, goals, projections, and
statements about the benefits of the transaction, the plans, objectives, expectations and intentions of Huntington, and other statements that are not historical facts. Such statements 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. The forward-looking statements are intended to be subject to the safe harbor provided by
Section 27A of the Securities Act of 1933, Section 21E of the Securities Exchange Act of 1934, and the Private Securities Litigation Reform Act of 1995.
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 its 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 Board; volatility and disruptions in global
capital and credit markets; movements in interest rates; reform 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 and the Basel III regulatory capital reforms, as well as those involving the OCC, Federal Reserve, FDIC, and CFPB; the possibility that the anticipated benefits of the transaction 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; the
possibility that the proposed branch divestiture will not close when expected or at all because required regulatory approvals are not received or other conditions to the closing are not satisfied on a timely basis or at all; the possibility that
the branch divestiture may be more expensive to complete than anticipated, including as a result of unexpected factors or events; diversion of management’s attention from ongoing business operations and opportunities; potential adverse reactions or
changes to business or employee relationships, including those resulting from the announcement or completion of the branch divestiture; and other factors that may affect the future results of Huntington. Additional factors that could cause results
to differ materially from those described above can be found in Huntington’s Annual Report on Form 10-K for the year ended December 31, 2020 and in its subsequent Quarterly Reports on Form 10-Q, including for the quarter ended March 31, 2021, each
of which is on file with the Securities and Exchange Commission (the “SEC”) and available in the “Investor Relations” section of Huntington’s website, http://www.huntington.com, under the heading “Publications and Filings” and in other documents
Huntington files with the SEC.
All forward-looking statements speak only as of the date they are made and are based on information available at that time. Huntington does not assume any
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.