S-8 POS: Post-effective amendment to a S-8 registration statement
Published on July 2, 2007
As
filed with the Securities and Exchange Commission on July 2,
2007
Registration
No. _________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
ON
FORM
S-8
TO
FORM
S-4
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HUNTINGTON
BANCSHARES INCORPORATED
(Exact
Name of Registrant as specified in its charter)
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Maryland
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31-0724920
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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Huntington
Center
41
South High Street
Columbus,
Ohio 43287
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(Address
including Zip Code, and Telephone Number, Including Area Code, of
Registrant’s Principal Executive Offices)
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Sky
Financial Group, Inc. 2002 Stock Option and Stock Appreciation Rights
Plan, as amended
Sky
Financial Group, Inc. 1998 Stock Option Plan for
Employees
Second
Restatement of the Sky Financial Group, Inc. Amended and Restated
1998
Stock Option Plan
for
Directors
Century
Financial Corporation Stock Option Plan
Amended
and Restated Mid Am, Inc. 1997 Stock Option Plan
Citizens
Bancshares, Inc. Non-Statutory Stock Option and Stock Appreciation
Rights
Plan
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(Full
title of the plan)
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Richard
A. Cheap, Esq.
General
Counsel and Secretary
Huntington
Bancshares Incorporated
Huntington
Center
41
South High Street
Columbus,
Ohio 43287
(614)
480-8300
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(Name,
address and telephone number, including area code, of agent for
service)
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Copy to:
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Barbara
Nims, Esq.
Davis
Polk & Wardwell
450
Lexington Avenue
New
York, New York 10017
212-450-4000
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CALCULATION
OF REGISTRATION FEE
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Title
of each class
of
Securities to be registered
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Amount
to be
registered
|
Proposed
maximum
offering
price
per
share
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Proposed
maximum
aggregate
offering price
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Amount
of
registration
fee
|
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Common
Stock, $0.01 par value (“Common Stock”)
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7,374,045(1)
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(2)
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(2)
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(2)
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(1)
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Plus
(i) an indeterminate number of additional shares which may be offered
and
issued to prevent dilution resulting from stock splits, stock dividends
or
similar transactions and (ii) any additional preferred share purchase
right granted under any rights plan relating to the shares
above.
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(2)
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This
Post-Effective Amendment No. 1 covers securities that were originally
included in the Registrant’s registration statement on Form S-4 (File
No. 333-140897), as amended by Amendment Nos. 1-3 to Form S-4 registration
statement, which such securities were registered for the purpose of
issuance under the plans listed above. All filing fees payable
in connection with the issuance of these securities were previously
paid
in connection with the filing of the Form S-4 registration
statement.
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2
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
This
Post-Effective Amendment No. 1 on Form S-8 to the Form S-4 registration
statement is filed by the Registrant, and relates to a total of 7,345,045 shares
of Common Stock of the Registrant, all of which were originally registered
by
the Registrant on the Form S-4 registration statement filed on February 26,
2007, as amended by Amendment Nos. 1-3 to the Form S-4 registration statement
filed by the Registrant between April 2, 2007 and April 20, 2007 and which
became effective on April 20, 2007.
In
connection with the merger (the “Merger”) of Sky Financial Group, Inc., (“Sky”)
with and into Penguin Acquisition, LLC, a wholly owned subsidiary of the
Registrant (“Merger Sub”) pursuant to the Agreement and Plan of Merger, dated as
of December 20, 2006, by and among the Registrant, Sky and Merger Sub, shares
of
the common stock of Sky issuable upon the exercise or settlement of options
and
other equity awards granted under the director and employee equity compensation
plans of Sky will convert into corresponding awards covering the Common Stock
of
the Registrant.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE
The
following documents previously filed by us with the SEC are incorporated by
reference:
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1.
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Annual
Report on Form 10-K for the fiscal year ended December 31,
2006;
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2.
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Joint
Proxy Statement/Prospectus dated April 19, 2007, in connection with
our
2007 Annual Meeting of
Shareholders;
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3.
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Quarterly
Report on Form 10-Q for the quarter ended March 31,
2007;
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4.
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Current
Reports on Form 8-K, dated January 18, 2007, April 5, 2007, April
18,
2007, April 19, 2007, May 1, 2007, May 2, 2007, May 7, 2007 (2 reports),
May 14, 2007, May 30, 2007, June 4, 2007, June 20, 2007 and July
2, 2007,
to report annual and/or quarterly earnings and certain other developments
disclosed therein; and
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We
also
incorporate by reference any future filings we make with the Securities and
Exchange Commission under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934, as amended, until we sell all of the securities offered
by
the prospectus or otherwise terminate the offering. Any statement
contained in a document incorporated or deemed to be incorporated by reference
in this registration statement shall be deemed to be modified or superseded
for
purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document that also is or is deemed
to
be incorporated by reference in this Registration Statement modifies or
supersedes the statement. Any statement so modified or superseded shall not
be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM
4. DESCRIPTION OF SECURITIES
Not
applicable.
ITEM
5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not
applicable.
3
ITEM
6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our
Articles of Incorporation, as
amended, provide that we shall indemnify our officers and directors to the
full
extent of the general laws of the State of Maryland now or hereafter in force,
including the advance of expenses to our officers and directors. Our
obligation to advance expenses incurred by our officers and directors as a
result of any threatened, pending or completed action, suit or proceeding,
whether it be civil, criminal, administrative or investigative is subject to
the
procedures provided by Section 2-418 and other sections of the Maryland general
corporation law. Our Articles of Incorporation, as amended, also
provide that we may indemnify our officers who are not directors to such further
extent as shall be authorized by the Board of Directors, provided that such
additional indemnification is consistent with the law.
Section
2-418 of the Maryland general
corporation law provides, generally, that a corporation may indemnify any
officer or director made a party to any proceeding by reason of his or her
service in that capacity against judgments, penalties, fines, settlements,
and
reasonable expenses actually incurred by the officer or director in connection
with the proceeding, unless it is proved that the act or omission of the officer
or director was material to the cause of action adjudicated in the proceeding
and that such act or omission was committed in bad faith or was the result
of
active and deliberate dishonesty; or the officer or director actually received
an improper personal benefit in money, property, or services; or, in the case
of
any criminal proceeding, the officer or director had reasonable cause to believe
that the act or omission was unlawful. Notwithstanding the above, an
officer or director may not be indemnified for any judgments, penalties, fines,
settlements or expenses arising out of any proceeding brought by or in the
right
of the corporation, in which such officer or director shall have been adjudged
liable to the corporation or any judgments, penalties, fines, settlements or
expenses arising out of any proceeding charging improper receipt of a personal
benefit by such officer or director.
The
termination of any proceeding by
judgment, order, or settlement does not create a presumption that the officer
or
director did not meet the standard of conduct required for such officer or
director to be indemnified. However, the termination of any
proceeding by conviction, plea of nolo contendere or its equivalent, or the
entry of an order of probation prior to judgment, creates a rebuttable
presumption that the officer or director did not meet standard of conduct
required for such officer or director to be
indemnified. Indemnification of an officer or director is not
permitted unless authorized for a specific proceeding. Such
authorization shall only be given following a determination (1) by a majority
of
a quorum of directors not at the time parties to the proceeding (or a majority
of a committee of two or more such directors designated by the full board);
(2)
by special legal counsel selected by the board of directors; or (3) by the
stockholders, that indemnification is permissible because the officer or
director met the standard of conduct required for such officer or director
to be
indemnified.
The
reasonable expenses incurred by an
officer or director who is a party to a proceeding may be paid or reimbursed
by
the corporation in advance of the final disposition of the proceeding upon
receipt by the corporation of both a written affirmation by the officer or
director of his or her good faith belief that the standard of conduct necessary
for indemnification by the corporation has been met, and a written undertaking
by or on behalf of the officer or director to repay the amount if it shall
be
ultimately determined that the standard of conduct has not been
met.
The
indemnification and advancement of
expenses provided or authorized by Section 2-418 are not exclusive of any other
rights to which an officer or director may be entitled both as to action in
his
official capacity and as to action in another capacity while holding such
office.
Pursuant
to Section 2-418, a
corporation may purchase and maintain insurance on behalf of any person who
is
or was a director, officer, employee, or agent of the corporation, or who,
while
serving in such capacity, is or was at the request of the corporation serving
as
a director, officer, partner, trustee, employee, or agent of another corporation
or legal entity or of an employee benefit plan, against liability asserted
against and incurred by such person in any of those capacities or arising out
of
such person’s position, regardless of whether or not the corporation would have
the power to indemnify against liability under Section 2-418. A
corporation may provide similar protection, including a trust fund, letter
of
credit, or surety bond, so long as the form of such protection is not
inconsistent with Section 2-418. Additionally, a subsidiary or an
affiliate of the corporation may provide the insurance or similar
protection.
4
Subject
to
certain exceptions, our directors and officers and our affiliates are insured
to
the extent of 100% of loss up to a maximum of $40,000,000 (subject to certain
deductibles) in each policy year because of any claim or claims made against
them by reason of their wrongful acts while acting in their capacities as such
directors or officers and up to a maximum of $40,000,000 (subject to certain
deductibles) in each policy year because of any claim or claims made against
them by reason of their wrongful acts while acting in their capacities as
fiduciaries in the administration of certain of our employee benefit
programs. We are insured, subject to certain retentions and
exceptions, to the extent we shall have indemnified our directors and officers
for such loss.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED
Not
applicable.
ITEM
8. EXHIBITS
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4
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Articles
V, VIII and X of Articles of Restatement of Charter, as amended and
supplemented - previously filed as Exhibit 3(i) to Annual Report
on Form
10-K for the year ended December 31, 1993 and Exhibit 3(i)(c) to
Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1998,
and
incorporated herein by reference. Instruments defining the
rights of holders of long-term debt will be furnished to the Securities
and Exchange Commission upon request.*
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5
|
Opinion
of Richard A. Cheap, Esq., General Counsel and Secretary of Huntington
Bancshares Incorporated, as to the validity of the shares of Huntington
common stock - previously filed as Exhibit 5.1 to amendment to Form
S-4
registration statement filed on April 19, 2007 and incorporated herein
by
reference.*
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8.1
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Opinion
of Wachtell, Lipton, Rosen & Katz as to certain tax
matters.
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8.2
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Opinion
of Davis Polk & Wardwell as to certain tax
matters.
|
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23.1
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Consent
of Richard A. Cheap, Esq., General Counsel and Secretary of Huntington
Bancshares Incorporated - previously included in Exhibit 5.1 to amendment
to Form S-4 registration statement filed on April 19, 2007 and
incorporated herein by reference.*
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23.2
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Consent
of Deloitte & Touche LLP, independent registered public accounting
firm.
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23.3
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Consent
of Deloitte & Touche LLP, independent registered public accounting
firm.
|
|
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24
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Power
of attorney - previously filed as Exhibit 24.1 to Form S-4 registration
statement filed on February 26, 2007 and incorporated herein by
reference.*
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____________________
*
Incorporated by reference.
ITEM
9. UNDERTAKINGS
The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the 1933
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
5
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to
such information in this Registration Statement;
provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to
Section 13 or 15(d) of the 1934 Act that are incorporated by reference in this
Registration Statement.
(2) That,
for the purpose of determining any liability under the 1933 Act each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the 1933 Act to any
purchaser:
(i) If
the Registrant is relying on Rule 430B:
(A) Each
prospectus filed by
the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part
of
and included in the registration statement; and
(B) Each
prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the
information required by section 10(a) of the 1933 Act shall be deemed to be
part
of and included in the registration statement as of the earlier of the date
such
form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the registration statement relating to
the
securities in the registration statement to which that prospectus relates,
and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that is part of
the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of
the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made
in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date;
or
(ii) If
the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed
in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in
a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such
first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made
in
any such document immediately prior to such date of first use.
(5) That,
for the purpose of determining liability of the Registrant under the 1933 Act
to
any purchaser in the initial distribution of the securities:
6
The
undersigned Registrant undertakes that in a primary offering of securities
of
the undersigned Registrant pursuant to this Registration Statement, regardless
of the underwriting method used to sell the securities to the purchaser, if
the
securities are offered or sold to such purchaser by means of the following
communications, the undersigned Registrant will be a seller to the purchaser
and
will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned Registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of
the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the 1933 Act each filing of the Registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the 1934 Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as
indemnification for liabilities arising under the 1933 Act may be permitted
to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in
the
opinion of the Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the
payment by the Registrant of expenses incurred or paid by a director, officer
or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933
Act
and will be governed by the final adjudication of such issue.
7
Signatures
Pursuant
to the requirements of the Securities Act of 1933, Huntington Bancshares
Incorporated certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Columbus, State of Ohio, on July 2,
2007.
| HUNTINGTON BANCSHARES INCORPORATED | |||
|
|
By:
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/s/ Richard A. Cheap | |
| Richard A. Cheap, Secretary and General Counsel | |||
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
|
Date
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|||
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/s/
Thomas E. Hoaglin*
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Chairman,
Chief Executive Officer,
|
)
|
|||
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Thomas
E. Hoaglin
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President,
and Director (Principal
|
)
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|||
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Executive
Officer)
|
)
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||||
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/s/
Donald R. Kimble*
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Chief
Financial Officer, Executive
|
)
|
|||
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Donald
R. Kimble
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Vice
President, and Treasurer
|
)
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|||
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(Principal
Financial Officer)
|
)
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||||
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/s/
Thomas P. Reed*
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Senior
Vice President and Controller
|
)
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|||
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Thomas
P. Reed
|
(Principal
Accounting Officer)
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)
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|||
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/s/
Raymond J. Biggs*
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Director
|
)
|
|||
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Raymond
J. Biggs
|
)
|
||||
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/s/
Don M. Casto, III*
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Director
|
)
|
July
2, 2007
|
||
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Don
M. Casto, III
|
)
|
||||
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/s/
Michael J. Endres*
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Director
|
)
|
|||
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Michael
J. Endres
|
)
|
||||
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/s/
John B. Gerlach, Jr.*
|
Director
|
)
|
|||
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John
B. Gerlach, Jr.
|
)
|
||||
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/s/
David P. Lauer*
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Director
|
)
|
|||
|
David
P. Lauer
|
)
|
||||
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/s/
Wm. J. Lhota*
|
Director
|
)
|
|||
|
Wm.
J. Lhota
|
)
|
||||
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/s/
Gene E. Little*
|
Director
|
)
|
|||
|
Gene
E. Little
|
)
|
||||
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/s/
David L. Porteous*
|
Director
|
)
|
|||
|
David
L. Porteous
|
)
|
||||
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/s/
Kathleen H. Ransier*
|
Director
|
)
|
|||
|
Kathleen
H. Ransier
|
)
|
8
| *By: |
/s/
Richard A. Cheap
|
|
|||
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Richard
A. Cheap, attorney-in-fact
for
each of the persons indicated
|
|
||||
9
EXHIBIT
INDEX
|
|
4
|
Articles
V, VIII and X of Articles of Restatement of Charter, as amended
and
supplemented - previously filed as Exhibit 3(i) to Annual Report
on Form
10-K for the year ended December 31, 1993 and Exhibit 3(i)(c) to
Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1998,
and
incorporated herein by reference. Instruments defining the
rights of holders of long-term debt will be furnished to the Securities
and Exchange Commission upon request.*
|
|
|
5
|
Opinion
of Richard A. Cheap, Esq., General Counsel and Secretary of Huntington
Bancshares Incorporated, as to the validity of the shares of Huntington
common stock - previously filed as Exhibit 5.1 to amendment to
Form S-4
registration statement filed on April 19, 2007 and incorporated
herein by
reference.*
|
|
|
8.1
|
Opinion
of Wachtell, Lipton, Rosen & Katz as to certain tax
matters.
|
|
|
8.2
|
Opinion
of Davis Polk & Wardwell as to certain tax
matters.
|
|
23.1
|
Consent
of Richard A. Cheap, Esq., General Counsel and Secretary of Huntington
Bancshares Incorporated - previously included in Exhibit 5.1 to
amendment
to Form S-4 registration statement filed on April 19, 2007 and
incorporated herein by reference.*
|
|
23.2
|
Consent
of Deloitte & Touche LLP, independent registered public accounting
firm.
|
|
23.3
|
Consent
of Deloitte & Touche LLP, independent registered public accounting
firm.
|
|
|
24
|
Power
of attorney - previously filed as Exhibit 24.1 to Form S-4 registration
statement filed on February 26, 2007 and incorporated herein by
reference.*
|
____________________
*
Incorporated by reference.