<PAGE>
As filed with the Securities and Exchange Commission on April 5, 1994.
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
------------------------------
WHITNEY HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
------------------------------
<TABLE>
<S> <C> <C>
LOUISIANA 228 ST. CHARLES AVENUE 72-6017893
(State or other jurisdiction of NEW ORLEANS, LOUISIANA 70130 (I.R.S. Employer
incorporation or organization) (504) 586-7272 Identification Number)
(Address, including zip code, and
telephone number, including area code,
of registrant's principal executive offices)
</TABLE>
<TABLE>
<S> <C>
EDWARD B. GRIMBALL Copy to:
Executive Vice President JOSEPH S. SCHWERTZ, JR.
and Chief Financial Officer Corporate Secretary
Whitney Holding Corporation Whitney Holding Corporation
228 St. Charles Avenue 228 St. Charles Avenue
New Orleans, Louisiana 70130 New Orleans, Louisiana 70130
(504) 586-7272 (504) 586-3596
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after this Registration Statement becomes effective.
------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
/ /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common stock, no par value 90,909 shares $22.75 $2,068,179.75 $713.17
</TABLE>
(1) In the event of a stock split, stock dividend or similar transaction
involving Common Stock of the Company, in order to prevent dilution, the
number of shares registered shall be automatically increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act
of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on the closing price per share of the Common
Stock on March 31, 1994.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
================================================================================
<PAGE>
WHITNEY HOLDING CORPORATION
PROSPECTUS
90,909 SHARES
COMMON STOCK
(No Par Value)
This Prospectus relates to an aggregate of 90,909 shares (the "Shares") of
common stock, no par value (the "Common Stock"), of Whitney Holding Corporation
(the "Company") that may be offered, from time to time, by a certain shareholder
of the Company (the "Selling Shareholder"). The Company will not receive any of
the proceeds from the sale of the Shares. See "Selling Shareholder."
The Common Stock is quoted on the NASDAQ National Market System ("NASDAQ")
under the symbol "WTNY." The Shares may be sold, from time to time, in ordinary
brokers' transactions through the NASDAQ at the price prevailing at the time of
such sales. The commission payable will be the regular commission a broker
receives for effecting such sales. Shares may also be offered in block trades,
private transactions or otherwise. The net proceeds to the Selling Shareholder
will be the proceeds received by the Selling Shareholder upon such sales less
brokerage commissions. All expenses of registration incurred in connection with
this offering (estimated to be approximately $11,000) are being borne by the
Company, but any selling and other expenses incurred by the Selling Shareholder
will be borne by the Selling Shareholder.
No person is authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus in connection with the offer contained in this Prospectus and, if
given or made, any such information or representation must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy securities in any state or
other jurisdiction where, or to any person to whom, it is unlawful to make such
an offer or solicitation. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date hereof.
On March 31, 1994, the last reported sale price of the Common Stock through
the NASDAQ was $22.75 per share.
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------------
The date of this Prospectus is April 5, 1994.
<PAGE>
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), pertaining to the securities covered by this Prospectus. This Prospectus
omits certain information and exhibits included in the Registration Statement,
copies of which may be obtained upon payment of a fee prescribed by the
Commission or may be examined free of charge at the principal office of the
Commission in Washington, D.C.
The Company is subject to the informational requirements of the Securities
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Commission. Such
reports, proxy statements and other information filed with the Commission by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the regional offices of the Commission
located at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and at
Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The
Company's Common Stock is quoted on the NASDAQ National Market System (Symbol:
WTNY). Reports, proxy statements and other information concerning the Company
can be inspected at the offices of the National Association of Securities
Dealers, 1735 K Street, N.W., Washington, D.C. 20007.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are by this reference incorporated in and made a part of
this Prospectus:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 (File No. 0-1026);
(2) the description of the Company's capital stock set forth in its
Registration Statement on Form S-8 and Form S-3 filed with the Commission on
December 18, 1992.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference herein and to be part of this Prospectus from
their respective dates of filing. Information appearing herein or in any
document incorporated herein by reference is not necessarily complete and is
qualified in its entirety by the information and financial statements appearing
in the documents incorporated herein by reference and should be read together
therewith. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded to
the extent that a statement contained herein or in any other document
subsequently filed or incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Copies of all documents that are incorporated herein by reference (not
including the exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents or into this Prospectus) will be
provided without charge to each person, including any beneficial owner, to whom
this Prospectus is delivered, upon a written or oral request to Whitney Holding
Corporation, Attention: Edward B. Grimball, Chief Financial Officer, 228 St.
Charles Avenue, New Orleans, Louisiana 70130 (Telephone: (504) 586-7272).
2
<PAGE>
THE COMPANY
The Company is a Louisiana bank holding company registered pursuant to the
Bank Holding Company Act of 1956. The Company became an operating entity in
1962 with Whitney National Bank ("WNB") as its only significant subsidiary.
WNB, which has its headquarters in Orleans Parish, has been engaged in the
general banking business in the City of New Orleans since 1883. WNB has 44
branch offices located in the metropolitan area of New Orleans and in Lafayette
and Baton Rouge, Louisiana, as well as an international branch in Grand Cayman,
British West Indies. The Company's principal executive offices are located at
228 St. Charles Avenue, New Orleans, Louisiana 70130; telephone (504) 586-7272.
WNB engages in commercial and retail banking and in the trust business,
including the taking of deposits, the making of secured and unsecured loans, the
financing of commercial transactions, the issuance of credit cards, the
performance of corporate, pension and personal trust services, investment
services, and safe deposit rentals. WNB is also active as a correspondent for
other banks. WNB also renders specialized services of different kinds in
connection with all of the foregoing. All material funds of the Company are
invested in WNB.
The Company and WNB and their related operations are subject to federal,
state and local laws applicable to banks and bank holding companies and to the
regulations of the Board of Governors of the Federal Reserve System, the
Comptroller of the Currency and the Federal Deposit Insurance Corporation.
SELLING SHAREHOLDER
The following table sets forth the number and percentage of shares of
Common Stock owned by the Selling Shareholder at April 1, 1994, and after giving
effect to the offering of Shares pursuant to this Prospectus. The Company will
not receive any proceeds from the sale of Common Stock by the Selling
Shareholder.
<TABLE>
<CAPTION>
Beneficial ownership Beneficial ownership
prior to offering after offering (1)
-------------------------------- Number of --------------------------------------
Number of Shares that may Number of
Name Shares Percentage be offered (1) Shares Percentage
- ----------------------------- ------------------- ---------- -------------- --------------- ---------------------
<S> <C> <C> <C> <C> <C>
Lion Investbanc
Corporation 90,909 * 90,909 0 0%
617 North Boulevard
Suite 400
Baton Rouge, Louisiana 70802
</TABLE>
- --------------------
* Indicates less than one percent.
(1) Assumes the sale of all shares of Common Stock offered hereby. There can
be no assurance that the Selling Shareholder will sell any or all of such
Shares.
------------------------------
The Selling Shareholder may offer, from time to time, up to 90,909 shares;
provided, however, that the Selling Shareholder is not authorized to use this
Prospectus for any offer or sale of such Common Stock without first obtaining
the written consent of the Company. The Company may consent to the use of this
prospectus by the Selling Shareholder for a limited period of time and subject
to such limitations and conditions as may be agreed upon by the Company and the
Selling Shareholder. After the Company's consent is obtained, Shares offered
hereby may be sold in ordinary brokerage transactions through the NASDAQ at the
prices prevailing at the time of such sales. The commissions payable will be
the regular commissions of brokers for effecting such sales. Sales may also be
offered in block trades, private transactions or otherwise. Sales of the Shares
may only be made by one or more of the methods described in this Prospectus, as
appropriately supplemented or amended when required. The Company will pay all
expenses in preparing and reproducing this Prospectus, but will not receive any
part of the proceeds of the sale of any Shares. The Selling Shareholder will
pay all brokerage
3
<PAGE>
commissions. In connection with any sales, the Selling Shareholder and any
brokers participating in such sales may be deemed to be underwriters within the
meaning of the Securities Act.
The Company will supply the Selling Shareholder with reasonable quantities
of Prospectuses. There can be no assurances that the Selling Shareholder will
sell any or all of the shares of Common Stock offered by it hereunder.
CAPITAL STOCK
The authorized capital stock of the Company consists of 40,000,000 shares
of Common Stock, no par value, of which 14,549,762 were outstanding on March 31,
1994. The following description of the Company's capital stock is qualified in
its entirety by reference to the Company's Articles of Incorporation and By-laws
and to the applicable provisions of the Louisiana Business Corporation Law (the
"LBCL").
COMMON STOCK
Voting Rights - Non-cumulative Voting. Holders of Common Stock are
entitled to one vote per share on all matters to be voted on by the
shareholders. Holders of Common Stock do not have cumulative voting rights. As
a result, the holders of more than 50% of the Common Stock may elect all of the
directors.
Dividend Rights. Holders of outstanding Common Stock are entitled to
receive such dividends, if any, as may be declared by the Board of Directors, in
its discretion, out of funds legally available therefor.
Liquidation Rights. In the event of the liquidation of the Company, the
holders of Common Stock are entitled to receive pro rata any assets
distributable to shareholders in respect of their shares.
Preemptive Rights. Holders of Common Stock have no preemptive rights to
subscribe for additional shares of capital stock.
DIRECTORS
The Board of Directors of the Company is divided into five classes, as
nearly equal in number as possible, with members of each class to serve for five
years, and with one class being elected each year. Directors of the Company
must also be shareholders of the Company. Any director of the Company may be
removed from office with or without cause only by the affirmative vote of at
least 90% of the voting power of the Company present at a special meeting of the
shareholders called for that purpose. The quorum requirement for such a meeting
is 90% of the total voting power of the Company present in person or by proxy at
a special meeting called for that purpose.
The LBCL permits corporations to (i) include provisions in their articles
of incorporation that limit the personal liability of directors and officers for
monetary damages resulting from breaches of the duty of care, subject to certain
exceptions, and (ii) indemnify directors and officers, among others, in certain
circumstances for their expenses and liabilities incurred in connection with
defending pending or threatened suits.
The Company's Articles of Incorporation include a provision that eliminates
the personal liability of directors and officers to the Company and its
shareholders for monetary damages resulting from breaches of the duty of care to
the full extent currently permitted by the LBCL and further provides that any
amendment or repeal of that provision will not affect the elimination or
limitation of liability of an officer or director with respect to conduct
occurring prior to the time of such amendment or appeal.
The Articles of Incorporation also provide for indemnification and
advancement of expenses of any officer, director, employee or agent of the
Company for any action taken in good faith by that officer, director, employee
or agent. Indemnification in the case of actions by or in the right of the
Company shall be limited to expenses
4
<PAGE>
actually and reasonably incurred in defense or settlement of the action. The
Board of Directors, in its discretion, may choose to provide further
indemnification to officers, directors, employees and agents of the Company.
The Articles of Incorporation and By-laws authorize the Company to maintain
insurance covering the actions of its officers, directors, employees and agents,
and the By-laws provide for indemnification to the fullest extent allowed under
the LBCL.
SUPERMAJORITY AND FAIR PRICE PROVISIONS
Supermajority Provisions. The Articles of Incorporation contain certain
provisions designed to provide safeguards for shareholders when a Related Person
(as defined below) attempts to effect a Business Combination (as defined below)
with the Company. In general, a Business Combination between the Company and a
Related Person must be approved by the affirmative vote of at least 90% of the
voting power of the Company present at a shareholders' meeting, at which meeting
at least 90% of the total voting power of the Company must be present in person
or by proxy to constitute a quorum, unless certain minimum price and procedural
requirements are satisfied and the Board of Directors of the Company has the
opportunity to state its recommendations to the shareholders in a proxy
statement. If these requirements are satisfied, only the affirmative vote of
two-thirds of the voting power present or represented at a shareholders meeting
of the Company would be required.
A "Related Person" is defined as any person who, together with certain
persons related to him or it, is the beneficial owner of 10% or more of the
total voting power of the Company. The term "beneficial owner" includes persons
directly or indirectly owning or having the right to acquire or vote the stock
of the Company.
A "Business Combination" includes the following transactions: (1) any
merger or consolidation involving the Company or any subsidiary of the Company;
(2) any sale, lease, exchange, mortgage, pledge, transfer or other disposition
by the Company or any of its subsidiaries of all or a substantial part of the
assets of the Company; or (3) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition of all or a substantial part of the assets by an
entity to the Company or any of its subsidiaries.
Fair Price Provisions. There is no requirement that 90% of the voting
power present of the Company approve a Business Combination between a Related
Person and the Company if all of the requirements described below are satisfied.
(1) Minimum Price Requirement. The cash or fair market value of the
property, securities or other consideration to be received per share by
shareholders of the Company (other than the Related Person) in connection with
the Business Combination must be no less than the "Highest Purchase Price" (as
defined below) paid by such Related Person. This minimum price to be received
per share by shareholders must also exceed the highest price per share paid by
the Related Person in acquiring any of its holdings of the Common Stock and may
not be less than the earnings per share of Common Stock of the Company for the
four full consecutive fiscal quarters immediately preceding the record date for
solicitation of votes on such Business Combination, multiplied by the then
price/earnings multiple (if any) of such Related Person as customarily computed
and reported in the financial community.
The "Highest Purchase Price" is defined, in the case of Common Stock, as
the highest amount of consideration theretofore paid or agreed to be paid by the
Related Person for a share of Common Stock (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) immediately prior to the
commencement of acquisition of the Common Stock.
(2) Procedural Requirements. The following procedural requirements must
be satisfied at all times after the Related Person becomes a Related Person:
(i) the Related Person shall have taken steps to ensure that the Company's Board
of Directors included at all times representation by Continuing Directors (as
defined below) proportionate to the stockholdings of the Company's shareholders
not affiliated with the Related Person; (ii) there shall have been no reduction
in the annual rate of dividends paid on the shares of Common Stock unless
otherwise approved by a majority of the Continuing Directors; (iii) the Related
Person shall not have acquired any newly
5
<PAGE>
issued shares of Common Stock, directly or indirectly, except upon conversion of
convertible securities acquired by it prior to becoming a Related Person or as a
result of a pro-rata stock dividend or stock split; and (iv) the Related Person
shall not have acquired any additional shares of Common Stock or securities
convertible into Common Stock except as part of the transaction by which such
Related Person became a Related Person.
A "Continuing Director" includes a person who was a member of the Board of
Directors of the Company elected by the shareholders prior to the time that a
Related Person acquired in excess of 10% of the stock of the Company, or a
person recommended to succeed a Continuing Director by a majority of Continuing
Directors.
(3) Actions Prior to Becoming a Related Person. The Related Person shall
not have (i) received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances, guarantees, pledges
or other financial assistance or tax credits provided by the Company; or (ii)
made any major change in the Company's business or equity capital structure
without the unanimous approval of the Board of Directors, in either case prior
to the consummation of the Business Combination.
(4) Proxy Statement. A proxy statement pursuant to the requirements of
the Exchange Act shall be mailed to all shareholders of the Company for the
purpose of soliciting shareholder approval of the Business Combination and shall
contain at the front thereof, in a prominent place, any recommendations as to
the advisability (or inadvisability) of the Business Combination that the
Continuing Directors, or any of them, may choose to state, and if deemed
advisable by the Continuing Directors, an opinion of a reputable investment
banking firm as to the fairness of the terms of such Business Combination.
(5) Vote Necessary to Amend Articles of Incorporation. The Articles of
Incorporation provide that the affirmative vote of the holders of 90% or more of
the total voting power is required in order to amend the fair price provisions,
provided that only a majority vote of shareholders present or represented at a
meeting of shareholders called for such purpose is required if the action to
amend was approved by a majority of the Continuing Directors at a time when
there is a Related Person or a majority of the entire Board of Directors at a
time when there is no Related Person.
Purposes and Effect of Supermajority and Fair Price Provisions. The fair
price provisions are designed to prevent a purchaser from utilizing two-tier
pricing and similar inequitable tactics in the event of an attempted takeover of
the Company. In the absence of the supermajority and fair price provisions, a
purchaser who acquired control of the Company would be in a position, by virtue
of such control, to compel minority shareholders to accept a lower price or a
less desirable form of consideration than that given to other shareholders.
The effect of the provisions is to encourage any Related Person or
potential Related Person interested in a Business Combination to negotiate the
terms of such transaction with the Board of Directors of the Company prior to
its acquisition of a substantial amount of the capital stock of the Company and
in a context that would provide adequate time and information so that all
relevant considerations would receive the requisite attention and, if necessary,
publicity. The Board of Directors of the Company believes that the Continuing
Directors of the Company are likely to be more knowledgeable than individual
shareholders in assessing the business and prospects of the Company and are
accordingly better able to negotiate effectively with the Related Person. Also,
the provisions should help to protect those shareholders who by choice or for
lack of adequate opportunity did not sell shares in the first step of a two-
tiered offer, by ensuring that a fair price will be paid to the shareholders in
the second step of the two-tiered transaction if, but only if, the Related
Person elects to initiate a second step.
It should be noted, however, that tender offers are usually made at premium
prices above the prevailing market price of a company's stock. In addition,
acquisitions of stock by persons attempting to acquire control through market
purchases may cause the market price of the stock temporarily to reach levels
which are higher than would otherwise be the case. Because of the higher
percentage requirements for shareholder approval of any subsequent Business
Combination, and the possibility of having to pay a higher price to other
shareholders in such a Business Combination, it may become more costly for a
purchaser to acquire control of the Company. The Articles of Incorporation may
discourage such purchases, particularly those for less than all of the shares of
the Company, and may therefore deprive holders of the Common Stock of an
opportunity to sell their stock at a
6
<PAGE>
temporarily higher market price. A potential purchaser of stock seeking to
obtain control may also be discouraged from purchasing stock because a
supermajority shareholder vote would be required in order to change or eliminate
the fair price protection provisions in the Articles of Incorporation.
Although the supermajority and fair price provisions are designed to assure
fair treatment of all shareholders in the event of a takeover, the provisions
may also adversely affect the ability of shareholders to benefit from certain
transactions that are opposed by the Board of Directors of the Company.
In certain instances, the fair price provisions, while providing objective
pricing criteria, could be arbitrary and not indicative of value. In addition,
a Related Person may be unable, as a practical matter, to comply with all of the
procedural requirements of the Articles of Incorporation. In these
circumstances, a potential purchaser would be forced either to negotiate with
the Continuing Directors and offer terms acceptable to them or to abandon the
proposed Business Combination.
Under the fair price provisions, in certain circumstances, a Business
Combination that might be attractive to some shareholders might never be
proposed to the shareholders by a Related Person, or if proposed, might not be
consummated. Further, the provisions may, under certain circumstances, give
holders of a minority of the voting power a veto power over a Business
Combination that the majority of shareholders may believe desirable and
beneficial. On March 11, 1994, directors and executive officers of the Company
beneficially owned 1,759,592 shares (12.17%) of the Common Stock. Therefore, it
may be difficult or impossible for a Related Person to secure the necessary
supermajority vote without management's approval.
Since only the Continuing Directors will have the authority to avoid the
requirement of a supermajority shareholder vote to approve Business Combinations
if otherwise applicable, the provisions also may tend to insulate management
against the possibility of removal in the event of a takeover bid. Further, if
the Related Person were to replace all of the directors who were in office on
the date it became a Related Person (which it could not be assured of
accomplishing for at least four years because of the Board's classification),
there would be no Continuing Directors and, consequently, the 90% shareholder
vote requirement would apply to any Business Combination, unless the minimum
price and procedural requirements were satisfied.
Federal securities laws and regulations applicable to Business Combinations
govern the disclosure required to be made to minority shareholders in order to
consummate certain Business Combinations. However, the laws and regulations do
not assure that the terms of a Business Combination will be fair from a
financial standpoint. The LBCL provides that, under certain circumstances, the
affirmative vote of the holders of at least 80% of the voting power of a
Louisiana corporation is necessary in order to approve certain types of business
combinations with a related party unless the shareholders receive a price for
their shares as set forth in the LBCL and certain other conditions are met.
While the fair price protection provisions of the LBCL would apply to any
Business Combination involving the Company and a Related Party, the Board of
Directors of the Company believes that the fair price provisions in the Articles
of Incorporation provide additional assurance that the shareholders of the
Company will receive an equitable price for their shares in the event that a
Business Combination is consummated.
CONSIDERATIONS IN CHANGE OF CONTROL
The LBCL authorizes the Board of Directors of the Company, when considering
any proposal to acquire control of the Company, to take into account, among
other enumerated factors and any other factors the Board deems relevant, the
interests of the Company's employees, creditors and the communities in which the
Company conducts its business, as well as purely financial interests of the
Company's shareholders.
AMENDMENT OF ARTICLES OF INCORPORATION
The affirmative vote of the holders of 90% of the voting power present is
required to amend any provision of the Articles of Incorporation relating to the
Board of Directors of the Company or the supermajority and fair price provisions
contained therein. In other instances, the affirmative vote of at least a
majority of the total voting power of the Company is required to amend the
Articles of Incorporation.
7
<PAGE>
AMENDMENT OF BY-LAWS
The By-Laws may be amended or repealed by the affirmative vote of a
majority of the Board of Directors of the Company or by the affirmative vote of
at least a majority of the voting power present at a meeting of the shareholders
of the Company.
SHAREHOLDERS MEETINGS
Shareholders holding not less than 20% of the outstanding Common Stock may
require the Company to call a meeting of its shareholders.
LOUISIANA CONTROL SHARE ACQUISITION STATUTE
The LBCL Control Share Acquisition Statute provides that any shares
acquired by a person or group (an "Acquiror") in an acquisition that causes such
person or group to have the power to direct the exercise of voting power in the
election of directors in excess of 20%, 33-1/3% or 50% thresholds shall have
only such voting power as shall be accorded by the holders of all shares other
than Interested Shares (as defined below) at a meeting called for the purpose of
considering the voting power to be accorded to shares held by the Acquiror.
"Interested Shares" include all shares as to which the Acquiror, any officer of
the Company and any director of the Company who is also an employee of the
Company may exercise or direct the exercise of voting power. If a meeting of
shareholders is held to consider the voting rights to be accorded to an Acquiror
and the shareholders do not vote to accord voting rights to such shares, the
Company may have the right to redeem the shares held by the Acquiror for their
fair market value.
LEGAL MATTERS
Joseph S. Schwertz, Jr., Corporate Secretary and the Company's counsel, has
rendered an opinion that under the Louisiana Business Corporation Law the shares
of Common Stock offered hereby have been duly authorized and validly issued and
are fully paid and nonassessable.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by the Registrant in connection
with the offering of the shares of Common Stock registered hereunder are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee ................ $ 713
Printing fees and expenses ......................................... 1,200*
Legal fees and expenses payable by the Registrant .................. 5,000*
Legal fees and expenses payable by the Selling Shareholder ......... 0*
Accounting fees and expenses ....................................... 1,000*
Blue Sky fees and expenses ......................................... 2,000*
Miscellaneous ...................................................... 1,000*
--------
Total ...................................................... $10,913*
========
</TABLE>
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 83 of the Louisiana Business Corporation Law ("LBCL") provides
in part that a corporation may indemnify any director, officer, employee or
agent of the corporation against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any action, suit or proceeding to which he is or was a
party or is threatened to be made a party (including any action by or in the
right of the corporation), if such action arises out of his acts on behalf of
the corporation and he acted in good faith not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The indemnification provisions of the LBCL are not exclusive; however,
no corporation may indemnify any person for willful or intentional misconduct.
A corporation has the power to obtain and maintain insurance, or to create a
form of self-insurance on behalf of any person who is or was acting for the
corporation, regardless of whether the corporation has the legal authority to
indemnify the insured person against such liability.
The Company's Articles of Incorporation and By-laws provide for
indemnification for directors, officers, employees and agents or former
directors, officers, employees and agents of the Company to the full extent
permitted by Louisiana law.
The Company maintains an insurance policy covering the liability of
its directors and officers for actions taken in their official capacity.
Insofar as indemnification for liabilities arising under the
Securities act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provision or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
ITEM 16. EXHIBITS.
4.1 Articles of Incorporation of the Company, as amended (filed with the
Commission as Exhibit 3(i) to the Company's Quarterly Report on Form
10-Q for the quarter ended March 31, 1993 (File No. 0-1026) and
incorporated herein by reference).
4.2 By-laws of the Company as amended through March 31, 1994.
II-1
<PAGE>
5.1 Opinion of Joseph S. Schwertz, Jr. as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Joseph S. Schwertz, Jr. (included in Exhibit 5).
24.1 Power of Attorney (included on the Signature Page attached hereto).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers of shares are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
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 Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New Orleans, State of Louisiana, on this 4th day of
April, 1994.
WHITNEY HOLDING CORPORATION
By: /s/ WILLIAM L. MARKS
-------------------------------------
William L. Marks
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
immediately below constitutes and appoints Edward B. Grimball his true and
lawful attorney-in-fact and agent, with full power of substitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------- ----- ----
<S> <C> <C>
/s/ WILLIAM L. MARKS Chairman of the Board April 4, 1994
- ---------------------- and Chief Executive Officer
William L. Marks
/s/ R. KING MILLING Director and President April 4, 1994
- ---------------------
R. King Milling
/s/ EDWARD B. GRIMBALL Executive Vice President and April 4, 1994
- ------------------------ Chief Financial Officer
Edward B. Grimball (Principal Financial Officer
and Principal Accounting Officer)
/s/ HARRY J. BLUMENTHAL, JR. Director April 4, 1994
- ----------------------------
Harry J. Blumenthal, Jr.
</TABLE>
S-1
<PAGE>
<TABLE>
<S> <C> <C>
/s/ JAMES M. CAIN Director April 4, 1994
- -----------------------
James M. Cain
- ----------------------- Director April , 1994
Robert H. Crosby, Jr.
- ----------------------- Director April , 1994
Richard B. Crowell
- ----------------------- Director April , 1994
William A. Hines
- ----------------------- Director April , 1994
Robert E. Howson
/s/ JOHN F. KELLY Director April 4, 1994
- -------------------
John F. Kelly
/s/ E. JAMES KOCK, JR. Director April 4, 1994
- ------------------------
E. James Kock, Jr.
- ------------------------ Director April , 1994
John G. Phillips
/s/ JOHN K. ROBERTS, JR. Director April 4, 1994
- --------------------------
John K. Roberts, Jr.
- -------------------------- Director April , 1994
W. P. Snyder III
/s/ WARREN K. WATTERS Director April 4, 1994
- -----------------------
Warren K. Watters
</TABLE>
S-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION SEQUENTIALLY
NUMBERED
PAGE
<S> <C> <C>
4.1 Articles of Incorporation of the
Company, as amended (filed with the
Commission as Exhibit 3(i) to the
Company's Quarterly Report on Form
10-Q for the quarter ended March 31,
1993 (File No. 0-1026) and
incorporated herein by reference).
4.2 By-laws of the Company as amended
through March 31, 1994.
5.1 Opinion of Joseph S. Schwertz, Jr.
as to the legality of the securities
being registered.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Joseph S. Schwertz, Jr.
(included in Exhibit 5).
24.1 Power of Attorney (included on the
Signature Page attached hereto).
</TABLE>
<PAGE>
BY-LAWS
OF
WHITNEY HOLDING CORPORATION
SECTION 1. Meetings of the Board of Directors of this corporation may be held
by means of conference telephone or similar communications equipment.
SECTION 2. A. Without limiting in any way the indemnification by the
corporation of persons as provided in its charter and the existing applicable
law, the corporation shall have authority to indemnify persons in accordance
with Louisiana Revised Statutes 12:83 as it may from time to time become
amended, supplemented or replaced.
B. The corporation shall have authority to procure or maintain insurance or
other similar arrangement in accordance with Louisiana Revised Statutes 12:83(F)
and (G) as they may from time to time become amended, supplemented or replaced.
SECTION 3. The Company may issue stock certificates signed by the Chief
Executive Officer and Secretary of the Company. In addition to the Chief
Executive Officer and Secretary of the
<PAGE>
Company, the President, any Vice President and any Assistant Secretary,
respectively, of the Company may sign the Company's stock certificates. The
company may issue stock certificates bearing the facsimile signatures of the
Company's Chief Executive Officer and Secretary, provided such certificates are
countersigned by Whitney National Bank, Trust Department, as transfer agent for
the Company's stock.
SECTION 4. There shall be a standing committee of this Corporation, appointed
by the Board, to be known as the Executive Committee, consisting of the Chairman
of the Board, the President, and such other Directors as may be appointed from
time to time, each to serve a 12 months' term, four (4) members of which shall
constitute a quorum for the transaction of business. This committee shall have
power to direct and transact all business of the Corporation, which properly
might come before the Board of Directors, except such as the Board only, by law,
is authorized to perform. The Executive Committee shall report its actions in
writing at each regular meeting of the Board of Directors, which shall approve
or disapprove the report and record such action in the minutes of the meeting.
<PAGE>
[LETTERHEAD OF WHITNEY HOLDING CORPORATION APPEARS HERE]
April 4, 1994
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, Louisiana 70130
RE: Shelf Registration Statement on Form S-3
Gentlemen:
I serve as Corporate Secretary and counsel to Whitney Holding Corporation
(the "Company"), and in such capacity have represented the Company in connection
with the preparation of that certain Registration Statement on Form S-3 (the
"Registration Statement") filed by the Company on the date hereof with the
Securities and Exchange Commission with respect to an offer, on a delayed or
continuous basis, by Lion Investbanc Corp. of up to an aggregate of 90,909
shares (the "Shares") of the Company's common stock, no par value. In so
acting, I have examined originals, or photostatic or certified copies, of such
records of the Company and of public officials, and such other documents as I
have deemed relevant. In such examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals,
the conformity to original documents of all documents submitted to me as
certified or photostatic copies and the authenticity of the originals of such
documents.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated and validly existing in
good standing under the laws of the State of Louisiana.
2. The Shares to be offered and sold pursuant to the terms described in
the Registration Statement have been duly authorized and validly issued and are
fully paid and non-assessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to me in the prospectus under the caption "Legal
Matters". In giving this consent, I do not admit that I am within the category
of persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the general rules and regulations of the Securities and
Exchange Commission.
Very truly yours,
[Signature of Joseph S. Schwertz, Jr. appears here]
Joseph S. Schwertz, Jr.
Corporate Secretary and
counsel to Whitney Holding Corporation
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 13, 1994,
included in Whitney Holding Corporation's Form 10-K for the year ended December
31, 1993, and to all references to our Firm included in this registration
statement.
Arthur Andersen & Co.
New Orleans, Louisiana,
April 4, 1994
