January 19, 1996
Securities and Exchange Commission
450 Fifth St., N.W.
Judiciary Plaza
Washington, D.C. 20549-1004
Via Edgar Electronic Filing System
In Re: File Number 0-1026
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Gentlemen:
Pursuant to regulations of the Securities and Exchange
Commission, submitted herewith for filing on behalf of Whitney Holding
Corporation (the "Company") is the Company's Report on Form 8-K dated
January 19, 1996.
This filing is being effected by direct transmission to the
Commission's EDGAR System.
Sincerely,
/s/ Edward B. Grimball
-----------------------------
Edward B. Grimball
Executive Vice President &
Chief Financial Officer
(504) 586-7570
EBG/drm
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: January 19, 1996
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WHITNEY HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
Louisiana 0-0126 72-6017893
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(State or other jurisdiction (Commission (IRS Employer
of incorporation File Number) Identification No.)
228 St. Charles Avenue, New Orleans, Louisiana 70130
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (504) 586-7117
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Not Applicable
-----------------------------------
(Former name or former address, if
changed since last report)
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Item 5: Other Events
Whitney Holding Corporation, a Louisiana corporation ("Whitney"), is
filing this Current Report on Form 8-K solely for the purpose of updating the
description of its securities registered under the Securities Exchange Act of
1934, as amended (File No. 0-0126), which was originally set forth in Whitney's
Registration Statement on Form 10 dated April 27, 1965 and amended under cover
of Form 8 dated December 3, 1965, to read in its entirety as follows:
Description of Whitney Common Stock
The authorized capital stock of Whitney consists of 40,000,000
shares of Common Stock, no par value ("Whitney Common Stock"), of which
14,878,019 were outstanding on December 31, 1995. The following
description of Whitney's capital stock is qualified in its entirety by
reference to Whitney's Articles of Incorporation and By-laws, each of
which is incorporated by reference as an exhibit to this Report, and to
the applicable provisions of the Louisiana Business Corporation Law
(the "LBCL").
Common Stock
Voting Rights - Non-cumulative Voting. Holders of Whitney
Common Stock are entitled to one vote per share on all matters to be
voted on by the shareholders. Holders of Whitney Common Stock do not
have cumulative voting rights. As a result, the holders of more than
50% of the Whitney Common Stock may elect all of the directors.
Dividend Rights. Holders of outstanding Whitney 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
Whitney, the holders of Whitney Common Stock are entitled to receive
pro rata any assets distributable to shareholders in respect of their
shares.
Preemptive Rights. Holders of Whitney Common Stock have no
preemptive rights to subscribe for additional shares of capital stock.
Directors
The Board of Directors of Whitney 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 Whitney must also be shareholders of Whitney. Any
director of Whitney may be removed from office with or without cause
only by the affirmative vote of at least 90% of the voting power of
Whitney present at a special meeting of the shareholders called for
that purpose. The
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quorum requirement for such a meeting is 90% of the total voting power
of Whitney 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. Whitney's Articles of Incorporation
include a provision that eliminates the personal liability of directors
and officers to Whitney 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 Whitney 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 Whitney shall be limited to expenses 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
Whitney.
Whitney's Articles of Incorporation and By-laws authorize
Whitney to maintain insurance covering the actions of its officers,
directors, employees and agents, and its By-laws provide for
indemnification to the fullest extent allowed under the LBCL.
No amendment to Whitney's Articles may amend any of the
provisions thereof relating to the Board of Directors unless such
amendment receives the affirmative vote of 90% of the voting power
present at a shareholders meeting for which there is a quorum as
described above; provided, however, that such 90% vote is not required
for any amendment unanimously recommended to the shareholders by the
Board of Directors at a time when there is no Related Person (as
defined below).
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 Whitney. In
general, a Business Combination between Whitney and a Related Person
must be approved by the affirmative vote of at least 90% of the voting
power of Whitney present at a shareholders meeting, at which meeting at
least 90% of the
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total voting power of Whitney 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 Whitney 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 Whitney (the quorum for which
would be the presence in person or by proxy of a majority of the total
voting power of Whitney) 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 outstanding shares of Whitney stock entitled to vote in
elections of directors. The term "beneficial owner" includes persons
directly or indirectly owning or having the right to acquire or vote
the stock of Whitney.
A "Business Combination" includes the following transactions:
(1) any merger or consolidation involving Whitney or its principal
subsidiary; (2) any sale or lease by Whitney or its principal
subsidiary of all or a substantial part of its assets; or (3) any sale
or lease to Whitney or any of its subsidiaries of any assets of any
Related Person in exchange for securities of Whitney or its principal
subsidiary.
Fair Price Provisions. There is no requirement that 90% of the
voting power present of Whitney approve a Business Combination between
a Related Person and Whitney if all of the requirements described below
are satisfied:
(1) Minimum Price Requirement. The cash, or fair market value
of other consideration, to be received per share by shareholders of
Whitney in connection with the Business Combination must bear the same
or a greater percentage relationship to the market price of Whitney
Common Stock immediately prior to the announcement of such Business
Combination as the highest per share price (including brokerage
commissions and soliciting dealers' fees) that the Related Person has
theretofore paid for any of the shares of Whitney Common Stock already
owned by it bears to the market price of the Whitney Common Stock
immediately prior to the commencement of the acquisition of Whitney
Common Stock by the Related Person. In addition, the cash, or fair
market value of other consideration, to be received per share by
shareholders of Whitney in such Business Combination must not be less
than (i) the highest per share price (including brokerage commissions
and soliciting dealers' fees) paid by the Related Person in acquiring
any of its holdings of Whitney Common Stock and (ii) the earnings per
share of Whitney Common Stock 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 the Related Person as customarily
computed and reported in the financial community.
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(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 Whitney's Board of Directors included at all times
representation by Continuing Directors (as defined below) proportionate
to the stockholdings of Whitney's shareholders not affiliated with the
Related Person; (ii) there shall have been no reduction in the rate of
dividends paid on the shares of Whitney Common Stock unless otherwise
approved by unanimous vote of the directors (iii) the Related Person
shall not have acquired any newly issued shares of Whitney 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 prorata stock dividend or stock split; and (iv) the Related
Person shall not have acquired any additional shares of Whitney Common
Stock or securities convertible into Whitney 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 Whitney elected by the shareholders prior to
the time that a Related Person acquired in excess of 10% of the stock
of Whitney, 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 Whitney; or (ii) made any major change in Whitney'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 responsive to the
requirements of the Securities Exchange Act of 1934, as amended, shall
be mailed to all shareholders of Whitney 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 a majority of the Continuing Directors, an opinion
of a reputable investment banking firm as to the fairness (or not) of
the terms of such Business Combination from the point of view of
shareholders other than the Related Person.
(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 voting power present at a shareholders
meeting for which there is a quorum as described above is required in
order to amend the fair price provisions, provided that only a vote of
the holders of a majority of the total voting power of Whitney is
required if the action to amend is unanimously recommended to
shareholders by the
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Board of Directors if all such directors are persons who would be
eligible to serve as Continuing Directors.
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 Whitney. In the
absence of the supermajority and fair price provisions, a purchaser who
acquired control of Whitney 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 Whitney prior to its acquisition of a substantial amount of the
capital stock of Whitney 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 Whitney believes that the Continuing Directors of Whitney
are likely to be more knowledgeable than individual shareholders in
assessing the business and prospects of Whitney 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 that 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 Whitney. The Articles of Incorporation
may discourage such purchases, particularly those for less than all of
the shares of Whitney, and may therefore deprive holders of the Whitney
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
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adversely affect the ability of shareholders to benefit from certain
transactions that are opposed by the Board of Directors of Whitney.
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. To Whitney's
knowledge, on December 31, 1995, directors and executive officers of
Whitney beneficially owned approximately 1,430,568 shares
(approximately 9.6%) of the Whitney 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 Whitney and a Related Party, the
Board of Directors of Whitney believes that the fair price provisions
in the Articles of Incorporation provide additional assurance that the
shareholders of
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Whitney will receive an equitable price for their shares if a Business
Combination is consummated.
Considerations in Change of Control
The LBCL authorizes the Board of Directors of Whitney, when
considering any proposal to acquire control of Whitney, to take into
account, among other enumerated factors and any other factors the Board
deems relevant, the interests of Whitney's employees, creditors and the
communities in which Whitney conducts its business, as well as purely
financial interests of Whitney's shareholders.
Amendment of Articles of Incorporation
Except for the 90% vote required to amend any provision of the
Articles of Incorporation relating to the Board of Directors of Whitney
or the supermajority and fair price provisions contained therein, the
affirmative vote of at least a majority of the total voting power of
Whitney (i.e., a majority of the outstanding shares of Whitney Common
Stock), at a meeting the quorum for which is the presence in person or
by proxy of a majority of the total voting power, is required to amend
the Articles of Incorporation, and the quorum for such a meeting would
be a majority of the total voting power of Whitney. See, " --
Directors" and " -- Supermajority and Fair Price Provisions," above.
Amendment of By-laws
Whitney's By-Laws may be amended or repealed by the
affirmative vote of a majority of the Board of Directors of Whitney or
by the affirmative vote of at least a majority of the votes cast at a
meeting of the shareholders of Whitney.
Shareholders Meetings
Shareholders holding not less than 20% of the outstanding
Whitney Common Stock may require Whitney 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
Whitney and any director of Whitney who is also an employee of Whitney
may
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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, Whitney may have the right to redeem the shares held by
the Acquiror for their fair market value.
Item 7: Financial Statements and Exhibits
(c) Exhibits
3.1 Articles of Incorporation of Whitney, as amended
(filed with the Commission as an exhibit to Whitney's
Quarterly Report on Form 10-Q for the quarter ended
March 31, 1993 and incorporated herein by reference).
3.2 By-laws of Whitney, as amended (filed with the
Commission on April 5, 1994 as an exhibit to
Whitney's Registration Statement on Form S-3 (File
No. 33-52983) and incorporated herein by reference).
Signatures
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
WHITNEY HOLDING CORPORATION
---------------------------
(Registrant)
By: /s/ Edward B. Grimball
--------------------------------
Edward B. Grimball
Executive Vice President and
Chief Financial Officer
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Exhibit Index
No. Description
--- -----------
3.1 Articles of Incorporation of Whitney, as amended
(filed with the Commission as an exhibit to Whitney's
Quarterly Report on Form 10-Q for the quarter ended
March 31, 1993 and incorporated herein by reference).
3.2 By-laws of Whitney, as amended (filed with the
Commission on April 5, 1994 as an exhibit to
Whitney's Registration Statement on Form S-3 (File
No. 33-52983) and incorporated herein by reference).
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