HUNTINGTON BANCSHARES INCORPORATED 8.50% Series A Non-Cumulative Perpetual Convertible Preferred Stock Underwriting Agreement
EXHIBIT 1.1
EXECUTION COPY
HUNTINGTON BANCSHARES INCORPORATED
8.50% Series A Non-Cumulative Perpetual Convertible Preferred Stock
April 16, 2008
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇ Brothers Inc.
As Representatives of the several Underwriters
named in Schedule I hereto
▇▇▇▇▇▇ Brothers Inc.
As Representatives of the several Underwriters
named in Schedule I hereto
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Huntington Bancshares Incorporated, a Maryland corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to you, as the representatives of the
several underwriters (the “Underwriters”), 500,000 shares of 8.50% Series A Non-Cumulative
Perpetual Convertible Preferred Stock that are specified in Schedule I (the “Firm Securities”),
convertible into shares of common stock, par value $0.01 per share (the “Stock”), of the Company
and, at the election of the Underwriters, up to an aggregate of 75,000 additional shares of 8.50%
Series A Non-Cumulative Perpetual Convertible Preferred Stock (the “Optional Securities”) (the Firm
Securities and the Optional Securities that the Underwriters elect to purchase pursuant to Section
2 being collectively called the “Securities”) to the extent the Underwriters sell more than the
number of Firm Securities in the offering.
Capitalized terms used herein and not otherwise defined but that are defined in the Pricing
Prospectus (as defined in Section 1(a)), have the meanings specified in the Pricing Prospectus.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, the Underwriters as follows:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities
Act of 1933, as amended (the “Act”), on Form S-3 (File Nos. 333-131143, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-131143-04) in respect of the Securities and shares of Stock
issuable upon conversion thereof has been filed with the Securities and Exchange Commission (the
“Commission”) not earlier than three years prior to the date hereof; pursuant to the Act, such
registration statement, and any post-effective amendment thereto, became effective on filing; and
no stop order suspending the effectiveness of such registration statement or any part thereof has
been issued and no proceeding for that purpose has been initiated or threatened by the Commission,
and no notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the
Company (the base prospectus filed as part of such registration statement, in the form in which it
has most recently been filed with the Commission on or prior to the date of this Agreement, is
hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b)
under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such
registration statement, including all exhibits thereto, and including any prospectus supplement
relating to the Securities that is filed with the Commission and deemed by
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virtue of Rule 430B to be part of such registration statement, each as amended at the time
such part of the registration statement became effective, are hereinafter collectively called the
“Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(c)), is hereinafter called the “Pricing Prospectus”;
the form of the final prospectus relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(A)(a) is hereinafter called the
“Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus;
any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after
the date of the Basic Prospectus, such Preliminary Prospectus or the Prospectus, as the case may
be; any reference to any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the
Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act, and the rules
and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for use therein, which information
is limited to the information set forth in Section 8(f);
(c) For the purposes of this Agreement, the “Applicable Time” is 5:00 PM (Eastern time) on the
date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and
filed pursuant to Section 5(A)(a), taken together (collectively, the “Pricing Disclosure Package”)
as of the Applicable Time, did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus
listed on Schedule II does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus,
as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable
Time, did not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein, which information is limited to the information set
forth in Section 8(f);
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
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material respects to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the Representatives
expressly for use therein, which information is limited to the information set forth in Section
8(f); and no such documents were filed with the Commission since the Commission’s close of business
on the business day immediately prior to the date of this Agreement and prior to the execution of
this Agreement, except as set forth on Schedule II(b);
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use therein, which information is limited to the
information set forth in Section 8(f);
(f) Neither the Company nor any of its Significant Subsidiaries (as defined below) has
sustained since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or contemplated in
the Pricing Prospectus; and, since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not been any material adverse change
in the capital stock or long-term debt of the Company or any of its Significant Subsidiaries or any
material adverse change, or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, considered as a whole, otherwise than as set forth
or contemplated in the Pricing Prospectus;
(g) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except where the failure to so qualify or be in good
standing would not, individually or in the aggregate, have a material adverse effect on the current
or future financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries, considered as a whole (a “Material Adverse Effect”). Each significant subsidiary (as
defined in Rule 405 under the Act) of the Company as set forth on Schedule IV (each, a “Significant
Subsidiary”) has been duly constituted and is validly
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existing as a corporation, limited liability company, national banking association or business
trust, as applicable, in good standing under the laws of its jurisdiction of incorporation or
formation;
(h) The Company is duly registered as a bank holding company and qualified as a financial
holding company under the Bank Holding Company Act of 1956, as amended (the “BHC Act”);
(i) The Company and each of its subsidiaries are in compliance with all laws administered by
the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), the Office of
the Comptroller of the Currency (the “OCC”), the Federal Deposit Insurance Corporation (“FDIC”) and
any other federal or state bank regulatory authorities (together with the Federal Reserve Board,
the OCC and the FDIC, the “Bank Regulatory Authorities”) with jurisdiction over the Company or any
of its subsidiaries, except for failures to be so in compliance that would not individually or in
the aggregate have a Material Adverse Effect;
(j) The Company has an authorized capitalization as set forth in the Pricing Prospectus and
all of the issued shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares of capital stock of each
Significant Subsidiary that is a corporation or association have been duly and validly authorized
and issued, are fully paid and non-assessable and (except for directors’ qualifying shares or as
listed in Schedule IV) are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims; and the shares of Stock initially issuable upon conversion
of the Securities have been duly and validly authorized and reserved for issuance and, when issued
and delivered in accordance with the provisions of the Securities, will be duly and validly issued,
fully paid and non-assessable and will conform in all material respects to the description of the
Stock contained in the Pricing Disclosure Package and the Prospectus; and none of the outstanding
shares of capital stock of the Company was issued in violation of the preemptive or other similar
rights of any security holder of the Company.
(k) The Securities have been duly and validly authorized and, when issued and delivered
against payment at each Time of Delivery as contemplated by the Pricing Prospectus, such Securities
will be validly issued and will constitute valid and legally binding obligations of the Company;
and the Securities conform in all material respects to the descriptions thereof in the Pricing
Disclosure Package and the Prospectus;
(l) This Agreement has been duly authorized, executed and delivered by the Company;
(m) The issuance and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities and this Agreement and the consummation of the transactions herein and
therein contemplated by the Company will not (i) whether with or without the giving of notice or
lapse of or both, conflict with or constitute a breach or violation of, or default or Repayment
Event under or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant Subsidiary pursuant to any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument to which the Company or any Significant Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company or any Significant
Subsidiary is subject, or (ii) result in any violation of the provisions of (A) the Charter or the
Bylaws of the Company or other organizational documents of any Significant Subsidiary, or (B) any
applicable law, statute, rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court having jurisdiction over the Company or any Significant
Subsidiary or any of their properties, assets or operations, except (in the case of (i) or (ii)(B))
for conflicts, breaches, violations or defaults which would not have a Material Adverse Effect;
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and no filing with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency, domestic or foreign
(other than under the Act, which have been obtained, or as may be required under the securities or
Blue Sky laws of the various states or securities regulations of foreign jurisdictions) is
necessary or required in connection with the issuance and sale of the Securities by the Company or
the consummation by the Company of the transactions contemplated by this Agreement, except such as
have been obtained under the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws or securities regulations
of foreign jurisdictions in connection with the purchase and distribution of the Securities by the
Underwriters. As used herein, a “Repayment Event” means any event or condition that gives the
holder of any note, debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any Significant Subsidiary.
(n) Neither the Company nor any of its Significant Subsidiaries is (A) in violation of its
Charter, or comparable organizational documents, (B) in violation of its Bylaws or (C) in default
in the performance or observance of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound, except where such defaults
under (B) or (C) would not individually or in the aggregate have a Material Adverse Effect;
(o) The statements set forth in the Pricing Prospectus and the Prospectus under the captions
“Description of the Preferred Stock” and “Description of Huntington Capital Stock – Preferred
Stock,” insofar as they purport to constitute a summary of the terms of the Securities and to
describe the provisions of the documents referred to therein, fairly summarize in all material
respects the matters therein described; the statements set forth in the Pricing Prospectus and the
Prospectus under the caption “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA
Considerations,” insofar as they purport to constitute a summary of matters of U.S. federal income
tax law or the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or
legal conclusions with respect thereto, constitute an accurate summary in all material respects of
the matters set forth therein;
(p) Other than as set forth in the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Significant Subsidiaries is a party or of
which any property of the Company or any of its Significant Subsidiaries is the subject that,
individually or in the aggregate, would be reasonably expected to have a Material Adverse Effect;
and, to the Company’s knowledge, no such proceedings are threatened;
(q) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an “investment company”, as such term is
defined in the Investment Company Act;
(r) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made
any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the
Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the
earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within
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the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company was not an
“ineligible issuer” as defined in Rule 405 under the Act;
(s) Deloitte & Touche LLP, who have audited certain financial statements of the Company and
its subsidiaries and have audited the effectiveness of the Company’s internal control over
financial reporting, are independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(t) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles; the Company’s internal
control over financial reporting was effective as of December 31, 2007 and the Company is not aware
of any material weaknesses in its internal control over financial reporting;
(u) Since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting;
(v) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures were effective as of December 31, 2007;
(w) The operations of the Company and its subsidiaries have been conducted at all times in
compliance with applicable financial record keeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any applicable governmental agency
(collectively, the “Money Laundering Laws”), except where the failure to so comply would not,
individually or in the aggregate, have a Material Adverse Effect, and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened that would, individually or in the aggregate, have a Material
Adverse Effect; and
(x) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee of the Company (in their capacities as such) or affiliate of the
Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company
will not use the proceeds of the offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
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2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, (i) the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree, severally but not jointly, to purchase from the Company the number of Firm
Securities set forth in Schedule I at the purchase price set forth in Schedule I, and (ii) in the
event and to the extent that the Underwriters shall exercise the election to purchase Optional
Securities as provided below, the Company agrees to issue and sell to the Underwriters, and the
Underwriters agree, severally but not jointly, to purchase from the Company, at the same purchase
price set forth in clause (i) of this Section 2(a), the number of Optional Securities as to which
such election shall have been exercised (to be adjusted by you so as to eliminate fractions).
(b) The Company hereby grants to the Underwriters the right to purchase at their election,
from time to time and in whole or in part, up to 75,000 Optional Securities, at the same purchase
price set forth in clause (i) of Section 2(a). Any such election to purchase Optional Securities
may be exercised only by written notice from you to the Company setting forth the number of
Optional Securities to be purchased and the date on which such Optional Securities are to be
delivered, as determined by you but in no event (i) earlier than the First Time of Delivery, (ii)
later than 30 calendar days after the First Time of Delivery or (iii) unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days after the date of such
notice.
3. Delivery and Payment. (a) Delivery of and payment for the Securities shall be made at
the office, on the date and at the time specified (i) with respect to the Firm Securities, in
Schedule I or at such other date and time as the Underwriters and the Company may agree in writing
(such time and date of delivery of and payment for the Firm Securities being herein called the
“First Time of Delivery”) and (ii) with respect to the Optional Securities, if any, by the
Underwriters in their written notice of election to purchase such Optional Securities, or at such
other date and time as the Underwriters and the Company may agree in writing (such time and date
and time of delivery of and payment for the Optional Securities being herein called the “Second
Time of Delivery”; each First Time of Delivery and Second Time of Delivery is herein called a “Time
of Delivery”). The Securities to be purchased by the Underwriters hereunder will be represented by
one or more global certificates representing the Securities that will be deposited by or on behalf
of the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company
shall deliver the Securities to ▇▇▇▇▇▇ Brothers Inc., for the account of each Underwriter against
payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the Underwriters at least
forty-eight hours in advance, by causing DTC to credit the Securities to the account of the
Underwriters at DTC. The Company shall cause the certificates representing the Securities to be
made available to the Underwriters for checking at least twenty-four hours prior to each Time of
Delivery at the office of DTC or its designated custodian (the “Designated Office”).
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7, including the cross-receipt for Securities and any additional
documents requested by the Underwriters pursuant to Section 7(n) hereof, will be delivered to the
Closing Location specified in Schedule I, and the Securities will be delivered at the Designated
Office, all at each Time of Delivery. A meeting will be held at the Closing Location at 5:00 P.M.,
Eastern time, on the New York Business Day next preceding each Time of Delivery, at which meeting
the final drafts of the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 3, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or obligated by law or executive
order to close.
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4. Offering by Underwriters. It is understood that the Underwriters propose to offer the
Securities for sale as set forth in the Pricing Disclosure Package and the Prospectus.
5. Agreements. (A) General. The Company agrees with the Underwriters as follows:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the date of this Agreement; to make no further amendment or any supplement
to the Registration Statement, the Basic Prospectus or the Prospectus prior to any Time of Delivery
that shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to prepare a final term sheet, containing solely a description
of the Securities, in a form set forth in Schedule III and to file such term sheet pursuant to Rule
433(d) under the Act within the time required by such Rule; to file promptly all other material
required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to
file promptly all reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with
the offering or sale of the Securities; to advise you, promptly after the Company receives notice
thereof, of the time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities,
of any notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities
or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of objection, promptly to take such
steps including, without limitation, amending the Registration Statement or filing a new
registration statement, at the Company’s own expense, as may be necessary to permit offers and
sales of the Securities by the Underwriters (references herein to the Registration Statement shall
include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus that shall be disapproved by you promptly after reasonable notice
thereof;
(c) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any jurisdiction or to
become subject to taxation in any jurisdiction in which it is not otherwise subject;
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(d) The Company will use its reasonable best efforts to furnish to the Underwriters prior to
noon, Eastern time, on the New York business day next succeeding the date of this Agreement and
from time to time, with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) is required at any time after the time of
issue of the Prospectus in connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to you and to any dealer in securities as many written and electronic
copies as you may from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus that will correct such statement or omission or effect such compliance;
(e) To make generally available to its security holders as soon as practicable, but in any
event not later than sixteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) of the
Company and its subsidiaries complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date of the Prospectus, and continuing to and
including the date 90 days after the date hereof or such earlier time as you may notify the
Company, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short
sale or otherwise dispose of, except as provided hereunder, any Securities or any shares of Stock
or any security of the Company that is substantially similar to the Securities or the Stock, any
options or warrants to purchase any Securities or any shares of Stock, or any securities that are
convertible into or exchangeable for or that represent the right to receive Securities or any
shares of Stock or any security of the Company that is substantially similar to the Securities or
the Stock or file a registration statement with respect to any of the foregoing other than (1) the
offer and sale of Securities pursuant to this Agreement, (2) the grant of stock options, restricted
stock units or other equity awards pursuant to the Company’s existing employee benefit, employee
stock purchase or dividend reinvestment plans, (3) the issuance of Stock pursuant to the exercise
of options or the settlement of equity awards, or (4) upon the consent of the Representatives. For
the avoidance of doubt, the foregoing restrictions in this Section 5(f) shall not apply to (1) any
of the family of funds known as Huntington Funds or (2) The Huntington National Bank acting in its
various fiduciary capacities, including, without limitation, sales of Company Stock by the
Company’s 401K and personal trusts.
(g) To pay the required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act;
(h) To reserve and keep available at all times, free of preemptive rights, shares of Stock for
the purpose of enabling the Company to satisfy any obligation to issue shares of Stock upon
conversion of the Securities; and
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9
(i) To use the net proceeds received from the sale of the Securities in the manner specified
in the Pricing Prospectus under the caption “Use of Proceeds”.
(B) Free Writing Prospectuses.
(a) (i) The Company represents and agrees that, other than the final term sheet prepared and
filed pursuant to Section 5(A)(a), without the prior consent of the Representatives, it has not
made and will not make any offer relating to the Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act;
(ii) Each Underwriter represents and agrees that, without the prior written consent of
the Company and the Representatives, other than one or more term sheets relating to the
Securities containing customary information (which, in their final form, will not be
inconsistent with the final term sheet prepared and filed pursuant to Section 5(a) hereof)
and conveyed to purchasers of Securities, it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus; and
(iii) Any such free writing prospectus the use of which has been consented to by the
Company and the Representatives (including the final term sheet prepared and filed pursuant
to Section 5(A)(a)) is listed on Schedule II(a) or Schedule II(b);
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and,
if requested by the Representatives, will prepare and furnish without charge to each Underwriter an
Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
omission; provided, however, that this agreement shall not apply to any statements or omissions in
an Issuer Free Writing Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the Representatives expressly for use
therein, which information is limited to the information set forth in Section 8(f).
6. Expenses. The Company covenants and agrees with the Underwriters that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s
counsel and accountants in connection with the registration of the Securities under the Act and all
other expenses in connection with the preparation, printing, reproduction and filing of the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this
Agreement, the Blue Sky memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(A)(c), including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such qualification
Convertible Preferred Stock Underwriting Agreement
10
and in connection with the Blue Sky survey (provided, however, that the aggregate fees and
disbursements of counsel in connection with this clause (iii) shall not exceed $30,000 without
prior written consent of the Company, which consent will not be unreasonably withheld); (iv) any
fees charged by securities rating services for rating the Securities; (v) the cost of preparing the
certificates for the Securities and shares of Stock issuable upon conversion of the Securities in
definitive form; (vi) filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required review by The Financial Industry Regulatory
Authority, Inc. (“FINRA”) of the terms of the sale of the Securities; (vii) all fees and expenses
in connection with the listing of the Securities; (viii) the costs and charges of any transfer
agent or registrar or paying agent; (ix) all of the Company’s costs and expenses relating to
investor roadshow and similar presentations; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section, and Sections 8 and 9,
the Underwriters will pay all of its own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by it, and any advertising expenses connected
with any offers it may make.
7. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters,
as to Securities to be purchased at each Time of Delivery, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of the date hereof as
of the Applicable Time and at and as of such Time of Delivery, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(A)(a); the final term sheet contemplated by Section
5(A)(a), and any other material required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the applicable time periods prescribed
for such filings by Rule 433; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission and no notice of objection of the Commission to the
use of the Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to
you, with respect to such matters as the Underwriters may reasonably require, and such counsel
shall have received such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) The Company’s Senior Corporate Counsel or such other internal counsel as shall be
reasonably acceptable to the Underwriters (the “Internal Counsel”), shall have furnished to you
such counsel’s written opinion, to the effect set forth in Annex II(a), dated such Time of
Delivery, in form and substance satisfactory to you;
Convertible Preferred Stock Underwriting Agreement
11
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to you their written
opinion, to the effect set forth in Annex II(b), dated such Time of Delivery, in form and substance
satisfactory to you;
(e) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, outside counsel for the Company, shall have furnished to
you their written opinion, to the effect set forth in Annex II(c), dated such Time of Delivery, in
form and substance satisfactory to you;
(f) Shearman & Sterling LLP, special tax counsel to the Company, shall have furnished to you
their written opinion, dated such Time of Delivery, in form and substance satisfactory to you, to
the effect that (i) subject to the qualifications set forth in the opinion and the Pricing
Disclosure Package and the Prospectus, the statements made in the Pricing Disclosure Package and
Prospectus under the caption “Certain United States Federal Income Tax Considerations” insofar as
they purport to constitute summaries of matters of United States federal income tax law and
regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects and (ii) subject to the qualifications set forth in the
opinion and the Pricing Disclosure Package and the Prospectus, the statements made in the Pricing
Disclosure Package and Prospectus under the caption “Certain ERISA Considerations,” insofar as they
purport to constitute summaries of matters of the U.S. Employee Retirement Income Security Act of
1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of
the matters described therein in all material respects;
(g) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
A.M., Eastern time, on the effective date of any post effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery,
Deloitte & Touche LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I
hereto, (the executed copy of the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) and a form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement, and as of such Time of Delivery is attached
as Annex I(b));
(h) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in the Pricing
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and
(ii) since the respective dates as of which information is given in the Pricing Prospectus there
shall not have been any change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the manner contemplated in
the Prospectus;
(i) The Company shall have complied with its obligations pursuant to the first sentence of
Section 5(A)(d) with respect to the furnishing of prospectuses on the business day next succeeding
the date of this Agreement;
Convertible Preferred Stock Underwriting Agreement
12
(j) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical
rating organization”, as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no
such organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company’s debt securities or preferred
stock;
(k) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or on NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on
NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or
New York or Ohio State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus; and
(l) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such time, as to the performance
by the Company of all of its obligations hereunder to be performed at or prior to such time, as to
the matters set forth in subsections (a) and (h) of this Section 7 and as to such other matters as
you may reasonably request.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the Underwriters against any losses, claims,
damages or liabilities, joint or several, to which the Underwriters may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus, any “road show” (as defined in Rule 433) not constituting an Issuer
Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule
433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse the Underwriters for any legal or other expenses reasonably
incurred by the Underwriters in connection with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company by an Underwriter
through the Representatives expressly for use therein, which information is limited to the
information set forth in Section 8(f).
(b) The Underwriters will, severally and not jointly, indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may become subject,
Convertible Preferred Stock Underwriting Agreement
13
under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with written information furnished to the Company by an
Underwriter through the Representatives expressly for use therein, which information is limited to
the information set forth in Section 8(f); and will reimburse the Company, as appropriate, for any
legal or other expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability that it may have to any indemnified party other than under such
subsection. In case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation, provided, however, that the
Representatives shall have the right to employ counsel to represent jointly the Representatives and
those other Underwriters and their respective directors, officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of which indemnity may
be sought by the Underwriters against the Company under this Section 8 if the named parties in any
such proceeding (including any impleaded parties) include both the Underwriters or their respective
directors, officers, employees or controlling persons, on the one hand, and the Company, on the
other hand, and representation of both sets of parties by the same counsel would be inappropriate
due to actual or potential differing interests between them, and in any such event the fees and
expenses of such separate counsel shall be paid by the Company. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall
Convertible Preferred Stock Underwriting Agreement
14
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by the Underwriters, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied
by the Company on the one hand or the Underwriters on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company on the one hand and the Underwriters on the other agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages that the Underwriters have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in addition to any liability
that the Company may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of the Act; and each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 8 shall be
in addition to any liability which the Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
(f) The Underwriters severally confirm that the statements regarding delivery of shares by the
Underwriters set forth on the cover page of, and the commission figures and the paragraphs relating
to stabilization by the Underwriters and electronic distribution appearing under the caption
“Underwriting” in, the most recent Preliminary Prospectus and the Prospectus are correct and the
Company acknowledges and agrees that such information constitutes the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto.
Convertible Preferred Stock Underwriting Agreement
15
9. Underwriter Default.
(a) If any Underwriter shall default in its obligation to purchase the Securities which it has
agreed to purchase hereunder, without relieving any defaulting Underwriter from liability for its
default, you may in your discretion arrange for you or another party or other parties to purchase
such Securities on the terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Securities on such terms. In the event that, within
the respective prescribed periods, you notify the Company that you have so arranged for the
purchase of such Securities, or the Company notifies you that it has so arranged for the purchase
of such Securities, you or the Company shall have the right to postpone any Time of Delivery for a
period of not more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The
term “Underwriter” as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate liquidation amount of such Securities which remains unpurchased does not exceed one
eleventh of the aggregate liquidation amount of all the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the liquidation amount of Securities
which such Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the liquidation amount of the
Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate liquidation amount of Securities which remains unpurchased exceeds one eleventh of
the aggregate liquidation amount of all the Securities, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters to purchase the
Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the Company and
without any liability on the part of the Company to any Underwriter, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. Expenses on Termination. If for any reason the Securities are not delivered by or on
behalf of the Company as provided herein for any reason other than the termination of this
Agreement pursuant to Section 9(c) or the default by one or more of the Underwriters in its or
their respective obligations, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses, including reasonable fees and disbursements of counsel, reasonably incurred
by the Underwriters in making preparations for the purchase, sale and delivery of the Securities
but the Company shall then be under no further liability to the Underwriters except as provided in
Section 6 and Section 8.
Convertible Preferred Stock Underwriting Agreement
16
11. Time is of the Essence. Time shall be of the essence of this Agreement. As used
herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C.
is open for business.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by an Underwriter through the Representatives, the
Company or any of the controlling persons referred to in Section 8(e), and will survive delivery of
and payment for the Securities. The provisions of Sections 6 and 8 shall survive the termination
or cancellation of this Agreement.
13. Termination. The obligations of the Underwriters hereunder may be terminated by the
Representatives by written notice given to and received by the Company prior to delivery of and
payment for the Firm Securities if, prior to that time, any of the events described in Sections
7(h), 7(j) and 7(k) shall have occurred.
14. Research Analyst Independence. The Company acknowledges that the Underwriters’
research analysts and research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and internal policies, and that
such Underwriters’ research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company and/or the offering
that differ from the views of their respective investment banking divisions. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any conflict of interest that may arise from the fact that
the views expressed by their independent research analysts and research departments may be
different from or inconsistent with the views or advice communicated to the Company by such
Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters
is a full service securities firm and as such from time to time, subject to applicable securities
laws, may effect transactions for its own account or the account of its customers and hold long or
short positions in debt or equity securities or loans (or any derivative thereof) of the companies
that may be the subject of the transactions contemplated by this Agreement.
15. Arm’s-Length Terms. The Company acknowledges and agrees that (i) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters, on the other, (ii) in connection therewith and with
the process leading to such transaction the Underwriters are acting solely as a principal and not
the agent or fiduciary of the Company, (iii) the Underwriters have not assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby
or the process leading thereto (irrespective of whether the Underwriters have advised or are
currently advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
16. No Other Agreements. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters with respect to the subject
matter hereof.
Convertible Preferred Stock Underwriting Agreement
17
17. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, heirs, executors, and administrators, and the
officers and directors and controlling persons referred to in Section 8(e), and no other person
will have any right or obligation hereunder.
18. Applicable Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
19. Waiver of Jury Trial. The Company and the Underwriters hereby irrevocably waive, to
the fullest extent permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. Counterparts; Notices. This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, which taken together shall constitute one and the same
instrument.
All notices hereunder shall be in writing or by telegram if promptly confirmed in writing, and
if to the Underwriters shall be sufficient in all respects if delivered or sent by mail, telex or
facsimile transmission to the addresses of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇ Brothers
Inc. as set forth in Schedule I; and if to the Company shall be sufficient in all respects if
delivered or sent by mail, telex or facsimile transmission to its address set forth in the
Registration Statement, Attention: General Counsel and Secretary.
The Underwriters hereby notify the Company that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”)
the Underwriters may be required to obtain, verify and record information that identifies the
Company, which information includes the name and address of the Company and other information that
will allow the Underwriters to identify the Company in accordance with the Patriot Act. This
notice is given in accordance with the requirements of the Patriot Act and is effective for each
Underwriter.
21. Disclosure of Tax Treatment. Notwithstanding anything herein to the contrary, the
Company is authorized to disclose to any persons the U.S. federal and state income tax treatment
and tax structure of the potential transaction and all materials of any kind (including tax
opinions and other tax analyses) provided to the Company relating to that treatment and structure,
without the Underwriters, imposing any limitation of any kind. However, any information relating to
the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities laws. For this
purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
Convertible Preferred Stock Underwriting Agreement
18
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us four counterparts hereof, whereupon this letter and your acceptance shall represent a
binding agreement between the Company and the Underwriters.
| Very truly yours, HUNTINGTON BANCSHARES INCORPORATED |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| Accepted as of the date hereof: | ||||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated | ||||
By:
|
/s/ Serkan Savasoglu
Title: Executive Director |
|||
| ▇▇▇▇▇▇ Brothers Inc. | ||||
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President |
|||
Convertible Preferred Stock Underwriting Agreement
SCHEDULE I
Title of Securities:
8.50% Non-Cumulative Perpetual Convertible Preferred Stock, Series
A, $1,000 liquidation preference per share of Huntington Bancshares
Incorporated (the “Convertible Preferred Stock”)
A, $1,000 liquidation preference per share of Huntington Bancshares
Incorporated (the “Convertible Preferred Stock”)
Number of Firm Securities:
500,000
Number of Optional Securities:
75,000
Initial Public Offering Price:
$1,000 per share of Convertible Preferred Stock
Purchase Price by Underwriters:
$970 per share of Convertible Preferred Stock
Underwriters’ Compensation:
$30 per share of Convertible Preferred Stock
Specified Funds for Payment of Purchase Price:
Immediately available funds by wire
First Time of Delivery:
April 22, 2008; 10 A.M. (Eastern time)
Closing Location:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices, etc.:
For ▇▇▇▇▇▇ ▇▇▇▇▇▇▇:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Convertible Preferred Stock Underwriting Agreement
I-1
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Telex:
Facsimile:
Attn:
Telex:
Facsimile:
For ▇▇▇▇▇▇ Brothers:
Underwriter Contact Information:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Syndicate Registration
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Syndicate Registration
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Indemnification Contact:
Director of Litigation, Office of the General Counsel
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Underwriters:
| Number of | ||||
| Underwriter | Shares | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
257,500 | |||
▇▇▇▇▇▇ Brothers Inc. |
207,500 | |||
Wachovia Capital Markets, LLC |
16,650 | |||
The Huntington Investment Company |
10,000 | |||
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. |
8,350 | |||
Total |
500,000 | |||
Convertible Preferred Stock Underwriting Agreement
I-2
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
(b) Issuer Free Writing Prospectuses included in the Pricing Disclosure Package:
(c) Additional Documents Incorporated by Reference:
Convertible Preferred Stock Underwriting Agreement
II-1