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Registration No. 33-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WHITNEY HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
LOUISIANA 72-6017893
(State or other (I.R.S. Employer
jurisdiction of incorporation Identification Number)
or organization)
228 ST. CHARLES AVENUE
NEW ORLEANS, LOUISIANA 70130
(504) 586-7272
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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EDWARD B. GRIMBALL
Executive Vice President
and Chief Financial Officer
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, Louisiana 70130
(504) 586-7570
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
JOSEPH S. SCHWERTZ, JR., ESQ. VIRGINIA BOULET, ESQ.
Corporate Secretary Phelps Dunbar, L.L.P.
Whitney Holding Corporation Texaco Center, 30th Floor
228 St.Charles Avenue 400 Poydras Street
New Orleans, Louisiana 70130 New Orleans, Louisiana 70130
(504) 586-3596 (504) 584-9286
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
By the Selling Shareholders, from time to time after the effective date of
this Registration Statement.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please 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, please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH AMOUNT OFFERING AGGREGATE
CLASS OF SECURITIES TO BE PRICE PER OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED/(1)/ UNIT/(2)/ PRICE/(2)/ REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock......... 150,000 $26.75 $4,012,500 $1,383.63
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</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 last reported sale price of the
Common Stock on August 26, 1994, as reported by NASDAQ.
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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 said Section 8(a),
may determine.
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WHITNEY HOLDING CORPORATION
PROSPECTUS
COMMON STOCK
(NO PAR VALUE)
This Prospectus relates to an aggregate of 150,000 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 certain
directors (the "Selling Shareholders") who participate in the Directors'
Compensation Plan (the "Plan"). The Common Stock is traded on the NASDAQ Stock
Market ("NASDAQ") under the symbol "WTNY." Shares will be sold by the Selling
Shareholders 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 Shareholders will be the proceeds
received by them upon such sales, less brokerage commissions. The Company will
receive no proceeds pursuant to the sale of Shares. Information regarding the
Selling Shareholders is set forth herein under the heading "Selling Shareholders
and Shares that may be Offered." All expenses of registration incurred in
connection with this offering are being borne by the Company, but the brokerage
and other expenses of sale incurred by individual Selling Shareholders will be
borne by such Selling Shareholders.
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 August 26, 1994, the last reported sale price of the Common Stock
through the NASDAQ was $26.75 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 August 31, 1994.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports and other information filed by the
Company with the Commission pursuant to the informational requirements of the
Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices of the Commission: 75 Park
Place, 14th Floor, New York, New York 10007 and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material may be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Common Stock is listed on the
NASDAQ National Market System and the Company's reports, proxy statements and
other information may also be inspected at the offices of the National
Association of Securities Dealers, 1735 K Street, N.W., Washington D.C. 20007.
Certain reports filed with the Commission by the Company are
incorporated herein by reference. See "Documents Incorporated by Reference."
Except as specified herein, no other portions of such reports are incorporated
herein by reference and such other portions are not part of this Prospectus.
This Prospectus omits certain information contained in the Registration
Statement on Form S-3 filed with the Commission under the Securities Act of
1933, as amended (the "Securities Act") in which this Prospectus is included
(the "Registration Statement"). The Company hereby undertakes to provide
without charge to each person to whom a copy of this Prospectus has been
delivered, upon his request, a copy of the information that has been
incorporated by reference into the Registration Statement (other than exhibits
to such documents unless such exhibits are specifically incorporated by
reference into the documents that the Registration Statement incorporates).
Requests should be directed to Whitney Holding Corporation, Attention: Edward
B. Grimball, 228 St. Charles Avenue, New Orleans, Louisiana 70130 or by
telephone, (504) 586-7570.
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 general
banking business in the City of New Orleans since 1883. WNB has 44 branch
offices located in the metropolitan areas of New Orleans and in Lafayette and
Baton Rouge, as well as an international branch in Grand Cayman, British West
Indies.
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 renders specialized services of different kinds in
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connection with all of the foregoing, and has forty-four domestic offices and
one foreign office. 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 SHAREHOLDERS AND SHARES THAT MAY BE OFFERED
Shares acquired by Selling Shareholders pursuant to the Plan may be
authorized and unissued shares, treasury shares or shares acquired on the open
market.
The following table sets forth (1) the name of each Selling
Shareholder; (2) the amount of Common Stock owned by the Selling Shareholder, as
of August 15, 1994, unless otherwise indicated; (3) the amount of Common Stock
that may be offered pursuant to this Prospectus by the Selling Shareholder; (4)
the amount of Common Stock to be held by each Selling Shareholder subsequent to
the offering; and (5) the percentage of the outstanding Common Stock to be held
by each Selling Shareholder subsequent to the offering. All of the Selling
Shareholders have been directors of the Company for at least three years, except
for Mr. Blumenthal, Jr., who has been a director of the Company since 1993.
<TABLE>
<CAPTION>
COMMON
COMMON COMMON STOCK TO BE
STOCK STOCK OWNED
OWNED ON THAT MAY SUBSEQUENT PERCENT
AUGUST 15, BE OFFERED TO ANY OF
NAME OF SELLING SHAREHOLDER 1994/(1)/ HEREUNDER/(2)/ OFFERING CLASS
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<S> <C> <C> <C> <C>
Harry J. Blumenthal, Jr. 13,075 1,150 11,925/(3)/ *
James M. Cain 3,089 1,000 2,089 *
Robert H. Crosby, Jr. 11,290 1,150 10,140/(5)/ *
Richard B. Crowell 151,767 1,150 150,617/(6)/ 1%
William A. Hines 158,650 1,150 157,500/(7)/ 1%
Robert E. Howson 1,375 1,150 225 *
John J. Kelly 3,478 1,150 2,328 *
E. James Kock, Jr. 142,295 1,000 141,295/(4)/ *
John G. Phillips 4,525 1,150 3,375 *
John K. Roberts, Jr. 106,600 1,000 105,600/(8)/ *
W. P. Snyder, III 349,787 1,150 348,637/(9)/ 2%
Warren K. Watters 5,950 1,000 4,950 *
Totals: 951,888 13,200 938,688 *
</TABLE>
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(1) Includes Shares offered hereby which the Selling Shareholder has the right
to acquire when stock options under the Plan become exercisable or
restricted stock becomes transferrable.
(2) Consists of such Shares offered hereby.
(3) Includes 7,425 shares owned by a member of Mr. Blumenthal's family, of which
Mr. Blumenthal disclaims beneficial ownership.
(4) Includes 8,440 shares as to which Mr. Kock is a usufructuary. Also includes
the following shares for which Mr. Kock holds shared voting and dispositive
power and for which he disclaims beneficial ownership: 83,700 shares owned
by two corporations of which Mr. Kock is a director and in which he is a
shareholder; 4,308 shares owned by several trusts for the benefit of his
children, as to which he serves as trustee; and 19,325 shares beneficially
owned by members of Mr. Kock's family.
(5) Includes 450 shares owned by a member of Mr. Crosby's family and 6,750
shares owned by a partnership of which Mr. Crosby is an officer and a
director and in which he has a beneficial interest. Also includes 15 shares
owned by investment clubs of which a member of Mr. Crosby's family is a
member.
(6) Includes 56,207 shares owned by members of Mr. Crowell's family, of which
Mr. Crowell disclaims beneficial ownership.
(7) Includes 13,500 shares owned by a relative of Mr. Hines for whom he holds a
power of attorney. Beneficial ownership is disclaimed.
(8) Includes shared voting and investment power with respect to 95,550 shares
owned by a company having an investment committee of which Mr. Roberts is a
member.
(9) Includes shared investment and voting power with respect to 24,705 shares
owned by a charitable trust of which Mr. Snyder is one of three co-trustees.
_______________
The Selling Shareholders may offer, from time to time, up to 150,000
Shares to be acquired by them under the Plan. Shares may be sold in ordinary
brokerage transactions through the NASDAQ Stock Market at the prices prevailing
at the time of such sales. The commissions payable will be the regular
commissions of brokers for affecting such sales. Sales may also be offered in
block trades, private transactions or otherwise. 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 Shareholders will
pay all brokerage commissions. In connection with any sales, the Selling
Shareholders 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 Shareholders with reasonable
quantities of prospectuses. There can be no assurances that any of the Selling
Shareholders will sell any or all of the Shares offered by them hereunder.
CAPITAL STOCK
The authorized capital stock of the Company consists of 40,000,000
shares of Common Stock, no par value, of which 14,565,418 were outstanding on
August 15, 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").
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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 do not have preemptive
rights.
DIRECTORS
Staggered Board. 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.
Indemnification. The Articles of Incorporation 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
right of the Company shall be limited to expenses actually and reasonably
incurred in defense or settlement of an 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.
Limitation of Liability. The Articles of Incorporation eliminate the
personal liability of the Company's directors and officers to the Company or its
shareholders for monetary damages for breach of their duty of care. Directors
and officers are liable for monetary damages (i) for breach of their duty of
loyalty to the Company or its shareholders, (ii) for acts or omissions that were
not in good faith or which involved intentional misconduct or a knowing
violation of law, (iii) for knowingly, or without the exercise of reasonable
care and inquiry, authorizing the payment of an unlawful dividend or
distribution or the purchase or redemption of the Company's
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stock in violation of law, or (iv) for any transaction from which the director
or officer derived an improper personal benefit.
The limitation of liability provisions in the Articles of Incorporation
do not affect the ability of shareholders to obtain injunctive or other
equitable relief for any violation of the duty of care; they only eliminate
monetary damages as a remedy for breach of the duty of care. As a practical
matter, however, shareholders may be unable to obtain injunctive or equitable
relief unless they discover the improper action or transaction in time to obtain
judicial relief before it is consummated.
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.
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.
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
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"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 became 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
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 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 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.
(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 such 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.
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.
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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 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 which 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
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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 August 15, 1994,
directors and executive officers of the Company beneficially owned 1,261,088
shares (8.6%) 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 or two-thirds of the
voting power present at a shareholders' meeting, whichever is greater, is
required to amend the Articles of Incorporation.
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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 its 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.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by the Company with the
Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 filed pursuant to Section 13 of the Exchange Act.
(2) The Company's Quarterly Reports on Form 10-Q for the periods ended
March 31, 1994 and June 30, 1994.
All reports filed by the Company with the Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Shares offered
hereby shall be deemed to be incorporated by reference in this Prospectus and to
be made a part hereof from their respective dates of filing.
Any statement contained in a document incorporated or deemed to be
incorporated by reference 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.
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Estimated expenses payable in connection with the proposed sale of Common
Stock covered hereby are as follows:
<TABLE>
<S> <C>
Registration Fee..................................... $ 1,383.63
NASD Filing Fee...................................... 0.00
Printing and Engraving............................... 0.00
Legal Fees and Expenses.............................. 8,000.00
Accounting Fees and Expenses......................... 3,000.00
Blue Sky Fees and Expenses (including counsel fees).. 300.00
Transfer Agent....................................... 0.00
Miscellaneous........................................ 0.00
----------
Total Expenses.................................... $12,683.63
==========
</TABLE>
All expenses of registration incurred in connection with this offering are
being borne by the Company, but the selling and other expenses incurred by
individual Selling Shareholders will be borne by such Selling Shareholders.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation 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 right of the Company shall be
limited to expenses actually and reasonably incurred in defense or settlement of
an 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.
II-1
<PAGE>
ITEM 16. EXHIBITS.
4.1 Articles of Incorporation of the Company dated July 20, 1961,
as amended on May 23, 1962, as amended on February 9, 1971, as
amended on April 26, 1978, as amended on February 14, 1984, as
amended on February 11, 1987, and as amended on May 3, 1993.*
4.2 By-laws of the Company as amended through March 23, 1994.
5.1 Opinion of Phelps Dunbar, L.L.P. as to the legality of the
securities being registered.
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Phelps Dunbar, L.L.P. (included in Exhibit 5).
24.1 Power of Attorney (included on the Signature Page attached
hereto).
_______________
* Previously filed.
ITEM 17. 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;
(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
II-2
<PAGE>
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-3
<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 24th day of
August, 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 William L. Marks and Edward B.
Grimball, or either one of them, as 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 August 24, 1994
- ------------------------------ and Chief Executive Officer
William L. Marks
/s/ R. King Milling Director and President August 24, 1994
- ------------------------------
R. King Milling
</TABLE>
S-1
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Edward B. Grimball
- ------------------------------ Executive Vice President and August 24, 1994
Edward B. Grimball Chief Financial Officer
(Principal Financial Officer
and Principal Accounting Officer)
/s/ Harry J. Blumenthal, Jr. Director August 24, 1994
- ------------------------------
Harry J. Blumenthal, Jr.
/s/ James M. Cain Director August 24, 1994
- ------------------------------
James M. Cain
/s/ Robert H. Crosby, Jr. Director August 24, 1994
- ------------------------------
Robert H. Crosby, Jr.
/s/ Richard B. Crowell Director August 24, 1994
- ------------------------------
Richard B. Crowell
/s/ William A. Hines Director August 24, 1994
- ------------------------------
William A. Hines
/s/ Robert E. Howson Director August 24, 1994
- ------------------------------
Robert E. Howson
/s/ John J. Kelly Director August 24, 1994
- ------------------------------
John J. Kelly
/s/ E. James Kock, Jr. Director August 24, 1994
- ------------------------------
E. James Kock, Jr.
/s/ John G. Phillips Director August 24, 1994
- ------------------------------
John G. Phillips
/s/ John K. Roberts, Jr. Director August 24, 1994
- ------------------------------
John K. Roberts, Jr.
/s/ W. P. Snyder III Director August 24, 1994
- ------------------------------
W. P. Snyder III
/s/ Warren K. Watters Director August 24, 1994
- ------------------------------
Warren K. Watters
</TABLE>
S-2
<PAGE>
EXHIBIT 4.2
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 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,
<PAGE>
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>
EXHIBIT 5.1
LETTERHEAD OF PHELPS DUNBAR
APPEARS HERE
VIRGINIA BOULET
PARTNER
NEW ORLEANS OFFICE
(504) 584-9286
August 30, 1994
8916-20
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, Louisiana 70130
Re: Whitney Holding Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Whitney Holding Corporation (the "Company") in
connection with the preparation of its Registration Statement on Form S-3 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission (the "Commission") with respect to the issuance by the
Company of up to 150,000 shares of the Company's common stock, no par value per
share (the "Common Stock"), pursuant to the Whitney Holding Corporation
Directors' Compensation Plan (the "Plan") and the resale of such shares by
participants in the Plan. In so acting, we have examined and relied upon the
original, or a photostatic or certified copy, of such records of the Company,
certificates of public officials, and such other documents as we have deemed
relevant and necessary as the basis for the opinion set forth below.
In such examination, we have assumed the genuineness of all signatures
appearing on all documents, the legal capacity of all persons signing such
documents, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified,
conformed or photostatic copies, the accuracy and completeness of all corporate
records made available to us by the Company, and the truth and accuracy of all
facts set forth in all certificates provided to or examined by us.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that the
Common Stock has been duly
<PAGE>
authorized, and, when issued pursuant to the Plan, will be legally issued, fully
paid and non-assessable.
The foregoing opinions are limited to the laws of the State of Louisiana and
the federal laws of the United States of America. We express no opinion as to
matters governed by the laws of any other state. Furthermore, no opinion is
expressed herein as to the effect of any future acts of the parties or changes
in existing law. We undertake no responsibility to advise you of any changes
after the date hereof in the law or the facts presently in effect that would
alter the scope or substance of the opinions herein expressed.
This letter expresses our legal opinion as to the foregoing matters based on
our professional judgment at this time; it is not, however, to be construed as a
guaranty, nor is it a warranty that a court considering such matters would not
rule in a manner contrary to the opinion set forth above.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required under Section 7 of the Securities
Act or the General Rules and Regulations of the Commission.
Very truly yours,
PHELPS DUNBAR, L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors
Whitney Holding Corporation
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
August 31, 1994
