<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM 8-A/A
AMENDMENT NO. 1
FOR THE REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
EMPIRE BANC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MICHIGAN 38-2727982
------------------------ ---------------
(STATE OF INCORPORATION OR ORGANIZATION) (IRS EMPLOYER IDENTIFICATION NO.)
1227 FRONT STREET, TRAVERSE CITY, MICHIGAN 49686
-----------------------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
--------------------------
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be registered each class is to be registered
------------------- ------------------------------
Not Applicable
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
-------------------------------
Title of Class
<PAGE> 2
ITEM 1. DESCRIPTION OF SECURITIES
On February 4, 2000, Empire Bank Corporation (the "Company") entered into
an Amendment to Rights Agreement, dated as of February 4, 2000 (the
"Amendment"), to the Rights Agreement, dated as of December 19, 1990, (the
"Rights Agreement") between the Company and Empire National Bank, as Rights
Agent (the "Rights Agent"). The Company entered into the Amendment in connection
with its entry into an Agreement and Plan of Merger (including the Supplemental
Agreement of even date), dated as of February 4, 2000 (collectively, the "Merger
Agreement") with Huntington Bancshares Incorporated ("Huntington") pursuant to
which the Company would be merged into Huntington. In connection with their
entry into the Merger Agreement, the Company and Huntington also entered into a
Warrant Purchase Agreement, dated as of February 4, 2000, (the "Warrant Purchase
Agreement"), pursuant to which the Company granted Huntington a warrant to
purchase under certain circumstances, up to 630,080 shares of Company Common
Stock at a price, subject to certain adjustments of $29.00 per share
("Warrant"). The Warrant, if exercised in full, would result in Huntington
beneficially owning, before giving effect to the exercise of the Warrant, 19.9
percent of the number of shares of Company Common Stock outstanding. The Company
granted the Warrant in fulfillment of a condition and as an inducement to
Huntington's entry into the Merger Agreement. The Amendment provides that the
Merger Agreement and the Warrant will not trigger the Rights under the Rights
Agreement. The Merger Agreement and the Warrant Purchase Agreement were included
in Exhibits 2.1 and 2.2, respectively to the Company's Current Report on Form
8-K filed with the Securities and Exchange Commission (the "Commission") on
February 9, 2000.
On December 19, 1990, the Board of Directors of the Company decided a
dividend distribution of one Right for each outstanding share of Company Common
Stock to shareholders of record at the close of business on December 31, 1990.
Each Right entitles the registered holder to purchase from the Company a unit
consisting of one one-hundredth of a share (a "Unit") of Series A Junior
Participating Preferred Stock, $1.00 par value, (the "Preferred Stock") at a
Purchase Price of $50.00 per Unit, subject to adjustment. The Purchase Price may
be paid, at the option of the holder, in cash or shares of Common Stock having a
value at the time of exercise equal to the Purchase Price.
Initially, the Rights are attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days following the commencement of a
tender offer or exchange offer that could result in a person or group
beneficially owning 20% or more of such outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced by the Common
Stock certificates and will be transferred with and only with such Common Stock
certificates, (ii) Common Stock certificates issued after December 31, 1990 will
contain a notation incorporating
2
<PAGE> 3
the Rights Agreement by reference and (iii) the surrender for transfer of any
certificate for Common stock outstanding will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on December 19, 2000, unless earlier redeemed by the
Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise provided in
the Rights Agreement or determined by the Board of Directors, only shares of
Common Stock issued prior to the Distribution Date will be issued with the
Rights.
In the event that (i) the Company is the surviving corporation in a merger
with an Acquiring Person and its Common Stock is not changed or exchanged, (ii)
an Acquiring Person engaged in one or more "self-dealing" transactions as set
forth in the Rights Agreement, or (iii) during such time as there is an
Acquiring Person, a transaction occurs which has the effect of increasing such
Acquiring Person's ownership interest by more than 1%, each holder of a Right
will thereafter have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company) having
a value equal to two times the exercise price of the Right. For example, at an
exercise price of $50.00 per Right, each Right would entitle its holders to
purchase $100 worth of Common Stock (or other consideration, as noted above) for
$50.00. Assuming that the Common Stock had a per share market price of $15.50 at
such time, the holder of each valid Right would be entitled to purchase 6.45
shares of Common Stock for $50.00. Notwithstanding any of the foregoing,
following the occurrence of any of the events set forth in this paragraph, all
Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person will be null and
void. Moreover, the Rights shall not be exercisable, and shall be void so long
as held, by a holder (a "Nonqualified Holder") in any jurisdiction where the
requisite qualification to the issuance to such holder, or the exercise by such
holder, of the Rights in such jurisdiction shall not have been obtained or be
obtainable. Finally, Rights are not exercisable following the occurrence of any
of the events set forth above until such time as the Rights are no longer
redeemable by the Company as set forth below.
In the event that, at any time following the Stock Acquisition Date, (i)
the Company is acquired in a merger or other business combination transaction
(other than a merger described in the preceding paragraph), or (ii) 50% or more
of the Company's assets or earning power is sold or transferred, each holder of
a Right (except Rights beneficially owned by any Acquiring Person which
previously have been voided as set forth above) shall thereafter have the right
to receive, upon exercise, common stock of the acquiring company having a value
equal to two times the exercise price of the Right The events set forth in this
paragraph and in the preceding paragraph are referred to as the "Triggering
Events."
The Company may, at its option, at any time after a Stock Acquisition Date
and before an Acquiring Person becomes the beneficial owners of more than 50% of
the outstanding shares of
3
<PAGE> 4
the Common Stock, elect to exchange all outstanding Rights for shares of Common
Stock at an exchange ratio of one share of Common stock per Right, subject to
adjustment to prevent dilution as a result of events similar to those set forth
in (i) - (iii) of the next paragraph.
The Purchase Price payable, and in the number of Units of Preferred stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible securities at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of evidence of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above). No adjustment in the Purchase
Price will be required until cumulative adjustments amount to at least 1% of the
Purchase Price. No fractional Units will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred Stock
on the last trading date prior to the date of exercise.
At any time until 20 days following the Stock Acquisition Date, the Company
may redeem the Rights in whole, but not in part, at a price of $.01 per Right.
After the redemption period has expired, the Company's right of redemption may
be reinstated if an Acquiring Person reduces his beneficial ownership to 10% or
less of the outstanding shares of Common Stock in a transaction or series of
transactions not involving the Company. Immediately upon the action of the Board
of Directors ordering redemption of the Rights, the Rights will terminate and
the only right of the holders of Rights will be to receive the $.01 redemption
price.
Until a Right is exercised, the holder thereof, as such, will have no right
as a shareholder of the Company, including, without limitation, the right to
vote or to receive dividends. While the distribution of the Rights will not be
taxable to shareholders or to the Company, shareholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights (excluding the interests of any
Acquiring Person), or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable.
As long as the Rights are attached to the Common Stock, the Company will
issue one Right for each share of Common Stock issued before the Distribution
Date so that all such shares will have attached Rights. In addition, following
the Distribution Date and prior to the expiration or redemption of the Rights,
the Company, subject to certain limitations, will issue one Right for
4
<PAGE> 5
each share of Common Stock issued or sold pursuant to the exercise of stock
options or under employee plans or upon the exercise, conversion or exchange of
certain securities of the Company, and may issue Rights in certain other
circumstances. 50,000 shares of Preferred Stock are reserved for issuance upon
exercise of the Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on a substantial number of Rights being acquired.
The Rights should not interfere with any merger or other business combination
approved by the Board of Directors of the Company since the Board of Directors
may, at their option, at any time until 20 days following the Stock Acquisition
Date redeem all but not less than all the then outstanding Rights at the
Redemption Price.
A copy of the Rights Agreement was previously filed as Exhibit 1 to the
Registration Statement on Form 8-A as originally filed by the Company on
December 20, 1990. A copy of the Amendment was filed as Exhibit 4 to the
Company's Current Report on Form 8-K filed with the Commission on February 9,
2000. The summary description of the Rights included in this Registration
Statement does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement and the Amendment, which are incorporated
herein by reference.
ITEM 2. EXHIBITS
1 Rights Agreement dated as of December 19, 1990 between Empire Banc
Corporation and Empire National Bank is incorporated by reference to
the Company's Registration Statement on Form 8-A under the Securities
Exchange Act of 1934, as amended, filed with the Commission on
December 20, 1990.
2 Amendment to Rights Agreement, dated as February 4, 2000, to the
Rights Agreement, dated as of December 19, 1990, between Empire Banc
Corporation and Empire National Bank, as Rights Agent, is incorporated
by reference to the Company's Current Report on Form 8-K filed with
the Commission on February 9, 2000.
5
<PAGE> 6
SIGNATURE
Pursuant to requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this Amendment No. 1 to be signed on its
behalf by the undersigned, thereto duly authorized.
EMPIRE BANC CORPORATION
DATED: FEBRUARY 10, 2000 BY: /S/WILLIAM T. FITZGERALD, JR.
-----------------------------
WILLIAM T. FITZGERALD, JR.
VICE PRESIDENT AND SECRETARY/TREASURER
(PRINCIPAL FINANCIAL OFFICER)
6
