As filed with the Securities and Exchange Commission on January 15, 1997
Registration No. 333-17717
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4/A
(Amendment No. 1)
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
WHITNEY HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
------------------------
<TABLE>
<C> <C> <C>
LOUISIANA 6711 72-6017893
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
------------------------
228 St. Charles Avenue
New Orleans, Louisiana 70130
(504) 586-7117
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive office)
<TABLE>
<C> <C> <C>
Joseph S. Schwertz, Jr., Esq. Copies to: Copies to:
Secretary Patrick J. Butler, Jr., Esq. Paul M. Haygood, Esq.
Whitney Holding Corporation Milling, Benson, Woodward, Correro Fishman Haygood Phelps
228 St. Charles Ave. - Room 622 Hillyer, Pierson & Miller, L.L.P. Weiss Walmsley & Casteix, L.L.P.
New Orleans, LA 70130 909 Poydras Street, Suite 2300 201 St. Charles Avenue, 47th Floor
(504) 586-3474 New Orleans, LA 70112 New Orleans, Louisiana 70170
(Name, address, including zip code, and
telephone number, including area code, of
agent for service)
</TABLE>
Approximate Date of Commencement of Proposed Sale to the Public:
Upon submission of the Plan of Merger described in this registration statement
for the vote of shareholders of First National Bankshares, Inc.
-------------------------------
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box. |_|
------------------------------
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.
- --------------------------------------------------------------------------------
<PAGE>
WHITNEY HOLDING CORPORATION
CROSS REFERENCE SHEET
<TABLE>
<C> <C> <C>
Item of Form S-4 Location in Prospectus
- ---------------- ----------------------
A. Information About the Transaction
1. Forepart of Registration Statement and Cover Page
Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages Inside Cover; Table of Contents
of Prospectus
3. Risk Factors, Ratio of Earnings to Fixed Summary
Charges and Other Information
4. Terms of the Transaction Summary; The Plan of Merger
5. Pro Forma Financial Information Unaudited Pro Forma Condensed Combined
Financial Information
6. Material Contacts with the Company Being The Plan of Merger - Background; The Plan
Acquired of Merger - Reasons for the Plan of Merger;
The Plan of Merger - Recommendation of
FNB's Board of Directors
7. Additional Information Required for *
Reoffering by Persons and Parties Deemed
to be Underwriters
8. Interests of Named Experts and Counsel *
9. Disclosure of Commission Position on *
Indemnification for Securities Act Liabilities
B. Information About the Registrant
10. Information with Respect to S-3 Registrants Inside Cover; Summary; Information about
Whitney
11. Incorporation of Certain Information by Documents Incorporated by Reference
Reference
12. Information with Respect to S-2 or S-3 *
Registrants
13. Incorporation of Certain Information by *
Reference
14. Information with Respect to Registrants *
other than S-2 or S-3 Registrants
C. Information About the Company Being Acquired
15. Information with Respect to S-3 Companies *
16. Information with Respect to S-2 or S-3 Information about FNB; Documents
Companies Incorporated by Reference
</TABLE>
<PAGE>
WHITNEY HOLDING CORPORATION
CROSS REFERENCE SHEET
<TABLE>
<C> <C> <C>
Item of Form S-4 Location in Prospectus
- ---------------- ----------------------
17. Information with Respect to Companies *
other than S-2 or S-3 Companies
D. Voting and Management Information
18. Information if Proxies, Consents or
Authorizations are to be Solicited
(1) Date, Time and Place Information The Meeting - General
(2) Revocability of Proxy The Meeting - Solicitation, Voting and
Revocation of Proxies
(3) Dissenters' Rights of Appraisal Absence of Dissenters' Rights
(4) Persons Making Solicitation The Meeting - General; The Meeting -
Solicitation, Voting and Revocation of
Proxies
(5) Interests of Certain Persons in Summary - Interests of Certain Persons in the
Matters to be Acted upon; Voting Mergers; The Plan of Merger - Interests of
Securities and Principal Holders Certain Persons in the Mergers; Information
Thereof About FNB - Security Holdings of Principal
Shareholders and Management
(6) Vote Required for Approval The Meeting - Shares Entitled to Vote;
Quorum; Vote Required
(7) Directors and Executive Officers; Information About FNB; Documents
Executive Compensation; Certain Incorporated by Reference
Relationships and Related
Transactions
19. Information if Proxies, Consents or *
Authorizations are not to be Solicited or in
an Exchange Offer
</TABLE>
*Not applicable or answer is in the negative.
<PAGE>
[FIRST NATIONAL BANKSHARES, INC. LETTERHEAD]
January 17, 1997
Dear Shareholder:
You are cordially invited to attend a Special Meeting of Shareholders
of First National Bankshares, Inc. ("FNB"), to be held in the main office of
First National Bank of Houma ("FNBH"), 7910 Main Street, Houma, Louisiana, on
Tuesday, February 18, 1997 at 2:00 p.m., local time.
The purpose of the Special Meeting will be to consider and vote upon an
Agreement and Plan of Merger dated October 11, 1996, as amended, among FNB,
Whitney Holding Corporation ("Whitney"), FNBH, and Whitney's wholly-owned
subsidiary Whitney National Bank ("WNB") and the related Joint Agreement of
Merger between FNB and Whitney (collectively, the "Plan of Merger") pursuant to
which (i) FNB would merge into Whitney and each outstanding share of FNB Common
Stock would be converted into shares of Whitney Common Stock on the terms stated
in the Plan of Merger, and (ii) FNBH would, in due course, merge into WNB. You
are urged to read the enclosed Proxy Statement-Prospectus in its entirety for a
more complete description of the terms of the Plan of Merger.
The Board of Directors of FNB has unanimously approved the Plan of
Merger as being in the best interests of FNB's shareholders. The
Robinson-Humphrey Company, Inc., an investment banking firm experienced in the
valuation of banking institutions, has advised your Board of Directors that, in
its opinion, the consideration to be received by FNB's shareholders pursuant to
the Plan of Merger is fair to FNB's shareholders from a financial point of view.
Upon consummation of the Plan of Merger, you would receive common stock of
Whitney, one of the largest Louisiana-based bank holding companies. It is a
condition to the consummation of the Plan of Merger that FNB and Whitney receive
an opinion that the merger of FNB into Whitney will qualify as a tax-free
reorganization for federal income tax purposes. The Board believes that FNB's
merger into Whitney will enhance our ability to compete effectively in the
changing economic and legal environment facing all financial institutions, while
continuing to offer a broad range of banking services to the market areas
currently served by FNB. Whitney's Common Stock is quoted on the NASDAQ
(National Market System), providing you with the continued liquidity of owning a
publicly traded security.
The accompanying Notice of Special Meeting and Proxy
Statement-Prospectus contain information about the proposed Plan of Merger.
Please read carefully these materials and the documents delivered herewith and
incorporated by reference herein. Copies of the documents incorporated by
reference are available as indicated under the caption "Documents Incorporated
by Reference."
The Board of Directors recommends that you vote FOR the Plan of Merger
and urges you to sign and date the enclosed proxy and return it promptly in the
accompanying envelope in order to ensure that your vote is counted. Of
course, if you attend the Special Meeting, you nevertheless may vote in
person, even though you previously returned your proxy.
Very truly yours,
Jerome H. Mire
President and Chief Executive Officer
<PAGE>
FIRST NATIONAL BANKSHARES, INC.
7910 Main Street
Houma, Louisiana 70360
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD TUESDAY, FEBRUARY 18, 1997
To the Holders of Common Stock of First National Bankshares, Inc.:
NOTICE IS HEREBY GIVEN that a Special Meeting of Shareholders (the
"Meeting") of First National Bankshares, Inc. ("FNB") will be held at the main
office of its wholly-owned subsidiary, First National Bank of Houma ("FNBH"),
7910 Main Street, Houma, Louisiana on Tuesday, February 18, 1997 at 2:00 p.m.,
local time, for the following purposes:
1. To consider and vote upon a proposal to approve an Agreement
and Plan of Merger dated October 11, 1996, as amended, between
Whitney Holding Corporation ("Whitney"), Whitney National
Bank, FNB, and FNBH and the related Joint Agreement of Merger
between FNB and Whitney, copies of which are attached to
the accompanying Proxy Statement-Prospectus as Appendix A and
incorporated herein by reference (collectively, the "Plan of
Merger") pursuant to which, among other things: (a) FNB would
merge into Whitney, as a result of which FNBH would become a
wholly-owned subsidiary of Whitney and each outstanding share
of common stock of FNB would be converted into shares of
Whitney common stock as determined in accordance with the
terms of the Plan of Merger and (b) FNBH would, in due course,
merge into Whitney National Bank, a wholly-owned bank
subsidiary of Whitney, all as more fully described in the
attached Proxy Statement-Prospectus.
2. To transact such other business as may properly come before
the Meeting or any adjournment or postponement thereof.
Only shareholders of record at the close of business on January 8,
1997, are entitled to notice of and to vote at the Meeting or any adjournment or
postponement thereof.
Shareholders are cordially invited to attend the Meeting in person.
Whether or not you plan to attend the Meeting, you are urged to complete, date
and sign the enclosed proxy and to return it promptly.
By order of the Board of Directors
Sharon T. Roppolo
Secretary
Houma, Louisiana
January 17, 1997
- --------------------------------------------------------------------------------
I M P O R T A N T
IT IS IMPORTANT THAT YOUR SHARES BE REPRESENTED AT THE MEETING REGARDLESS OF THE
NUMBER THAT YOU HOLD. PLEASE PROMPTLY COMPLETE, SIGN AND MAIL THE ENCLOSED
PROXY IN THE ACCOMPANYING POST-PAID ENVELOPE, WHETHER OR NOT YOU INTEND TO BE
PRESENT AT THE MEETING. YOU MAY REVOKE YOUR PROXY AT ANY TIME BEFORE IT IS VOTED
BY GIVING WRITTEN NOTICE OF REVOCATION TO THE SECRETARY OF FNB OR BY EXECUTION
OF A PROXY OF A LATER DATE FILED WITH THE SECRETARY OF FNB AT OR BEFORE THE
MEETING.
- --------------------------------------------------------------------------------
<PAGE>
FIRST NATIONAL BANKSHARES, INC.
PROXY STATEMENT FOR SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD TUESDAY, FEBRUARY 18, 1997
WHITNEY HOLDING CORPORATION
PROSPECTUS
Common Stock, No Par Value
This Proxy Statement-Prospectus is being furnished to holders of common
stock, par value $2.50 per share ("FNB Common Stock"), of First National
Bankshares, Inc. ("FNB") in connection with the solicitation of proxies by FNB's
Board of Directors for use at a Special Meeting of Shareholders of FNB (the
"Meeting") to be held on Tuesday, February 18, 1997 at 2:00 p.m., local time, at
the main office of First National Bank of Houma ("FNBH"), 7910 Main Street,
Houma, Louisiana, and at any adjournment or postponement thereof. The purpose of
the Meeting is to consider and vote upon a proposal to approve an Agreement and
Plan of Merger dated October 11, 1996, as amended, between Whitney Holding
Corporation ("Whitney"), Whitney National Bank ("Whitney Bank"), FNB, and FNBH
and the related Joint Agreement of Merger between FNB and Whitney (collectively,
the "Plan of Merger"). The Plan of Merger provides for, among other things, the
merger of FNB into Whitney (the "Company Merger") and the merger of FNBH into
Whitney Bank. Upon consummation of the Company Merger, each outstanding share of
FNB Common Stock would be converted into shares of common stock, no par value,
of Whitney ("Whitney Common Stock") in the manner described herein, with cash
being paid for any fractional share interests. See "The Plan of
Merger-Description of the Plan of Merger--Conversion of Common Stock."
Consummation of the Company Merger requires the approval of the holders of at
least two-thirds of the shares of FNB Common Stock present at the Meeting in
person or by proxy and is also subject to the satisfaction of certain other
conditions, including obtaining necessary regulatory approvals.
Whitney has filed a Registration Statement pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), covering up to 1,438,596 shares
of Whitney Common Stock that may be issued upon consummation of the Company
Merger, as determined on the basis of the pricing formula described herein. The
actual number of shares of Whitney Common Stock to be issued will be determined
in accordance with the terms of the Plan of Merger. See "The Plan of Merger -
Description of the Plan of Merger -- Conversion of Common Stock." This
Proxy Statement-Prospectus constitutes a prospectus of Whitney relating to the
shares of Whitney Common Stock that are issuable to the holders of FNB Common
Stock upon consummation of the Company Merger.
This Proxy Statement-Prospectus, and the accompanying Notice of Special
Meeting and form of proxy, are being first mailed to shareholders of FNB on or
about January 17, 1997.
The outstanding shares of Whitney Common Stock are, and the shares of
Whitney Common Stock offered hereby will be, included for quotation on the
NASDAQ National Market System. The outstanding shares of FNB Common Stock are
listed and traded on the American Stock Exchange, Inc. (the "AMEX"). The closing
price per share of Whitney Common Stock on the NASDAQ National Market System on
January 8, 1997 was $35.00 and the closing price per share of FNB Common Stock
on the AMEX on January 8, 1997 was $19.625.
-------------------------------------------
THE SECURITIES TO BE ISSUED IN CONNECTION WITH THE PROPOSED COMPANY MERGER HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCU-
RACY OR ADEQUACY OF THIS PROXY STATEMENT-PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------------------
This Proxy Statement-Prospectus is dated January 16, 1997.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Proxy Statement-Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized by Whitney or
FNB. This Proxy Statement-Prospectus shall not constitute an offer to sell or
exchange or the solicitation of an offer to purchase any security, or the
solicitation of a proxy, nor shall there be any such sale, exchange or
solicitation in any jurisdiction in which, or to any person to whom, it is
unlawful to make such an offer, solicitation of an offer or proxy solicitation.
Neither the delivery of this Proxy Statement-Prospectus nor any distribution of
securities made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of Whitney or FNB since the date
hereof.
All information contained or incorporated by reference herein with
respect to FNB has been provided by FNB, and Whitney is relying on the accuracy
of that information. All information contained or incorporated by reference
herein with respect to Whitney has been provided by Whitney, and FNB is relying
on the accuracy of that information.
AVAILABLE INFORMATION
Each of Whitney and FNB is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith is required to file reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports, together with proxy
statements and other information filed by Whitney and FNB, can 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 Commission's
Regional Offices at 7 World Trade Center, 13th Floor, New York, New York 10048
and Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. 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, and they are also available to the public at the web site maintained by
the Commission at "http://www.sec.gov." In addition, such reports, proxy
statements and other information concerning FNB can be inspected at the offices
of the AMEX, the stock exchange on which FNB Common Stock (Symbol: FNH) is
traded, 86 Trinity Place, New York, New York 10006. Whitney Common Stock is
included for quotation on the NASDAQ National Market System (Symbol: WTNY), and
such reports, proxy statements and other information concerning Whitney can be
inspected at the offices of the National Association of Securities Dealers,
Inc., 1735 K Street, N.W., Washington, D.C. 20006.
Whitney has filed with the Commission a Registration Statement on Form
S-4 ("Registration Statement") under the Securities Act with respect to the
Whitney Common Stock offered by this Proxy Statement-Prospectus. This Proxy
Statement-Prospectus does not contain all of the information set forth in the
Registration Statement or the exhibits thereto. Statements contained in this
Proxy Statement-Prospectus as to the contents of any documents are necessarily
summaries of the documents, and each statement is qualified in its entirety by
reference to the copy of the applicable document filed with the Commission. For
further information with respect to Whitney and the transactions described
herein, reference is made to the Registration Statement, including the exhibits
thereto and any documents incorporated by reference therein.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed with the Commission by Whitney
pursuant to the Exchange Act are incorporated by reference into this Proxy
Statement-Prospectus:
1. Whitney's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (the "1995 10-K);
2. Whitney's Form 10-K/A (Amendment No. 1 to the 1995 10-K) filed
with the Commission on July 3, 1996;
3. Whitney's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996;
4. Whitney's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1996;
5. Whitney's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1996;
<PAGE>
6. Whitney's Current Report on Form 8-K filed with the Commission
on January 19, 1996 (the "Form 8-K");
7. Whitney's Current Report on Form 8-K filed with the Commission
on January 26, 1996;
8. Whitney's Current Report on Form 8-K filed with the Commission
on March 25, 1996 (the "March 8-K");
9. Whitney's Form 8-K/A (Amendment No. 1 to the March 8-K) filed
with the Commission on May 21, 1996; and
10. The description of Whitney common stock set forth in Whitney's
registration statement under the Exchange Act, as updated and
modified in its entirety by the Form 8-K (File No. 0-1026).
The following documents previously filed with the Commission by FNB
pursuant to the Exchange Act are incorporated by reference into this Proxy
Statement-Prospectus:
1. FNB's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
2. FNB's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996;
3. FNB's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996;
4. FNB's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996;
5. FNB's Amended Annual Report on Form 10-K/A for the fiscal year
ended December 31, 1994; and
6. FNB's Amended Quarterly Reports on Forms 10-Q/A for the
quarters ended March 31, June 30, and September 30, 1995.
All documents filed by Whitney pursuant to Sections 13(a), 13(c), 14,
or 15(d) of the Exchange Act after the date of this Proxy Statement-Prospectus
and prior to the date of the Meeting described herein shall be deemed to be
incorporated by reference in this Proxy Statement-Prospectus and to be a part
hereof from the date of their filing. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein or in any subsequently filed document which also is,
or is deemed to be, incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed to
constitute a part hereof, except as so modified or superseded.
THIS PROXY STATEMENT-PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE
THAT ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE
AVAILABLE UPON REQUEST, IF FILED BY WHITNEY, FROM EDWARD B. GRIMBALL, CHIEF
FINANCIAL OFFICER, WHITNEY HOLDING CORPORATION, 228 ST. CHARLES AVENUE, NEW
ORLEANS, LOUISIANA 70130 (TELEPHONE (504) 586-7252), AND, IF FILED BY FNB, FROM
SHARON T. ROPPOLO, SECRETARY, FIRST NATIONAL BANKSHARES, INC., P.O. BOX 6096,
HOUMA, LOUISIANA 70361 (TELEPHONE (504) 853-7410). IN ORDER TO ENSURE TIMELY
DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY FEBRUARY 10,
1997. Whitney hereby undertakes to provide copies of any such documents,
other than exhibits thereto that are not specifically incorporated by reference
therein, without charge to each person, including any beneficial owner of FNB
Common Stock, to whom this Proxy Statement-Prospectus is delivered, upon the
written or oral request of such person to Whitney's Chief Financial Officer at
the address and telephone number written above.
<PAGE>
TABLE OF CONTENTS
SUMMARY......................................................................iii
Parties to the Company Merger.......................................iii
Whitney ..................................................iii
FNB ..................................................iii
The Special Meeting.................................................iii
General ..................................................iii
Purpose of the Meeting......................................iv
Vote Required........................................................iv
Reasons for the Plan of Merger.......................................iv
Recommendation of FNB's Board of Directors...........................iv
Fairness Opinion of Robinson-Humphrey................................iv
The Plan of Merger...................................................iv
General ...................................................iv
Exchange of Certificates.....................................v
Regulatory Approvals and Other Conditions to Consummation
of the Company Merger.......................................vi
Waiver, Amendment and Termination...........................vi
Accounting Treatment.............................................vi
Certain Federal Income Tax Consequences.............................vii
Absence of Dissenters' Rights.......................................vii
Interests of Certain Persons........................................vii
Market Prices.......................................................vii
Comparative Rights of Shareholders..................................vii
Selected Financial Data of FNB.....................................viii
Selected Financial Data of Whitney...................................ix
Comparative Per Share Data............................................x
THE MEETING....................................................................1
General .............................................................1
Purpose of the Meeting................................................1
Shares Entitled to Vote; Quorum; Vote Required........................1
Solicitation, Voting and Revocation of Proxies........................1
Employee Stock Ownership Plan.........................................2
THE PLAN OF MERGER.............................................................2
General .............................................................2
Background............................................................2
Reasons for the Plan of Merger........................................4
General ....................................................4
Whitney ....................................................4
FNB ....................................................4
Recommendation of FNB's Board of Directors............................5
Fairness Opinion of The Robinson-Humphrey Company, Inc................5
General ....................................................5
Valuation Methodologies......................................6
Compensation of Robinson-Humphrey............................7
Description of the Plan of Merger.....................................7
General ....................................................7
Conversion of Common Stock...................................7
Exchange of Certificates.....................................9
Transfer and Exchange Agents.................................9
Regulatory Approvals and Other Conditions of the
Company Merger...............................................9
Effective Date..............................................10
Conduct of Business Prior to the Effective Date.............10
i
<PAGE>
Waiver, Amendment and Termination...........................11
Interests of Certain Persons.........................................12
Employee Benefits...........................................12
ESOP. ...................................................12
Change in Control and Other Agreements......................12
Indemnification and Insurance...............................13
Status Under Federal Securities Laws; Certain Restrictions
on Resales .................................................13
Accounting Treatment.................................................14
ABSENCE OF DISSENTER'S RIGHTS.................................................14
CERTAIN FEDERAL INCOME TAX CONSEQUENCES.......................................14
UNAUDITED PRO FORMA
CONDENSED COMBINED FINANCIAL INFORMATION...................................15
INFORMATION ABOUT FNB.........................................................23
Description of Business..............................................23
Price Range of FNB Common Stock and Quarterly Dividends .............23
INFORMATION ABOUT WHITNEY.....................................................24
General ............................................................24
Recent Developments..................................................24
Market Prices of and Dividends Declared on Whitney Common Stock .....25
COMPARATIVE RIGHTS OF SHAREHOLDERS............................................25
Description of Whitney Common Stock..................................26
Comparison of Whitney Common Stock and FNB Common Stock..............30
Boards of Directors.........................................30
Removal of Directors........................................30
Preferred Stock.............................................30
Special Meetings of Shareholders............................31
Supermajority Vote Requirements.............................31
Reversion...................................................31
Indemnification Rights......................................31
LEGAL MATTERS.................................................................32
EXPERTS.......................................................................32
SHAREHOLDER PROPOSALS.........................................................32
OTHER MATTERS.................................................................32
Appendix A-Agreement and Plan of Merger (including Amendment)...A-1
Appendix B-Fairness Opinion of The Robinson-Humphrey Company, ..B-1
ii
<PAGE>
SUMMARY
The following summary is not intended to be complete and is qualified
in its entirety by the more detailed information appearing elsewhere in this
Proxy Statement-Prospectus, the appendices hereto and the documents incorporated
herein by reference. Shareholders are urged to read carefully all such material.
Parties to the Company Merger
Whitney. Whitney Holding Corporation, a Louisiana corporation
("Whitney"), is a multi-bank holding company registered pursuant to the Bank
Holding Company Act of 1956. Whitney became an operating entity in 1962 with
Whitney National Bank ("Whitney Bank") as its only significant subsidiary.
Whitney Bank, which has its headquarters in Orleans Parish, Louisiana, has been
engaged in general banking business in the City of New Orleans since 1883. It
currently operates 61 branches in south Louisiana and a foreign branch on Grand
Cayman in the British West Indies. In December 1994, Whitney established the
Whitney Bank of Alabama and, through this new banking subsidiary, acquired the
Mobile area operations of The Peoples Bank, Elba, Alabama on February 17, 1995.
Whitney Bank of Alabama operates 10 branches and one loan production office
serving metropolitan Mobile and Montgomery, Alabama and the Alabama Gulf Coast
region. On October 25, 1996, Whitney acquired Liberty Bank and American Bank and
Trust, both of Pensacola, Florida, through mergers of those institutions into
Whitney National Bank of Florida ("Whitney Bank-Florida"), a wholly-owned
subsidiary of Whitney formed for that purpose. Whitney Bank-Florida operates
five branches serving Pensacola, Florida and surrounding areas.
Whitney and its subsidiaries are sometimes referred to collectively
herein as "Whitney's consolidated group." At September 30, 1996, Whitney had
total consolidated assets of approximately $3.5 billion and total consolidated
deposits of approximately $2.7 billion. Whitney's principal executive offices
are at 228 St. Charles Avenue, New Orleans, Louisiana 70130, and its telephone
number is (504) 586-7117. See "Information About Whitney."
On November 14, 1996, Whitney entered into an Agreement and Plan of
Merger with Merchants Bancshares, Inc. ("Merchants") and its majority-owned
subsidiary, Merchants Bank & Trust Co. ("Merchants Bank"), pursuant to which
Merchants would merge into Whitney and Whitney would acquire all of the
outstanding shares of Merchants Bank through either a merger with a subsidiary
of Whitney or a share exchange with Whitney. Upon consummation of these
transactions, which are subject to regulatory approval and other customary
conditions, the shareholders of Merchants and Merchants Bank would receive, in
the aggregate, shares of Whitney common stock having a value of approximately
$51.8 million, plus the amount of Merchants' retained net income after tax from
October 1, 1996 through the month preceding the date of closing. Merchants has
total consolidated assets of approximately $207 million. Whitney intends to
account for this acquisition as a pooling of interests. See "Information About
Whitney - Recent Developments."
FNB. First National Bankshares, Inc., a Louisiana corporation ("FNB"),
is a bank holding company that owns all of the outstanding stock of First
National Bank of Houma ("FNBH"). At September 30, 1996, FNB had total
consolidated assets of approximately $218.6 million and total consolidated
deposits of approximately $192.4 million. FNB and FNBH are sometimes referred to
herein collectively as "FNB's consolidated group." FNBH, a national banking
association and a wholly-owned subsidiary of FNB, is a full service commercial
bank offering consumer and commercial banking services at five locations in
Terrebonne Parish, Louisiana and a loan production office in New Orleans,
Louisiana. FNB's and FNBH's principal executive offices are at 7910 Main Street,
Houma, Louisiana 70360, and their telephone number is (504) 868-1660. See
"Information about FNB."
The Special Meeting
General. A special meeting of the shareholders of FNB (the "Meeting")
will be held on Tuesday, February 18, 1997 at the time and place set forth in
the accompanying Notice of Special Meeting of Shareholders. Only record holders
of the common stock, $2.50 par value per share, of FNB ("FNB Common Stock") at
the close of business on January 8, 1997 are entitled to notice of and to vote
at the Meeting. On that date, there were 2,017,600 shares of FNB Common Stock
issued and outstanding, each of which is entitled to one vote on each matter
properly to come before the Meeting.
iii
<PAGE>
Purpose of the Meeting. The purpose of the Meeting is to consider and
vote upon a proposal to approve an Agreement and Plan of Merger dated October
11, 1996, as amended, between Whitney, Whitney Bank, FNB and FNBH and the
related Joint Agreement of Merger between FNB and Whitney (collectively, the
"Plan of Merger"), copies of which are attached hereto as Appendix A, pursuant
to which, among other things, FNB will merge into Whitney (the "Company
Merger"), and, in due course, FNBH will merge into Whitney Bank (the "Bank
Merger" which, together with the Company Merger, are collectively called the
"Mergers"), with the result that the business and properties of FNB will become
the business and properties of Whitney and shareholders of FNB will receive
shares of Whitney Common Stock (and cash in lieu of fractional shares) as
described below under " - The Plan of Merger." See "The Meeting - Purpose of the
Meeting."
Vote Required
The Plan of Merger must be approved by the affirmative vote of holders
of at least two-thirds of the shares of FNB Common Stock present at the Meeting
in person or represented by proxy. Directors and executive officers of FNB and
their affiliates hold an aggregate of 735,311 shares, or approximately 36.4%, of
the outstanding shares of FNB Common Stock. Of these 735,311 shares, directors
and executive officers of FNB own either directly or through the FNB Employee
Stock Ownership Plan or in other retirement plans an aggregate of 121,061, or
approximately 6.0%, of the outstanding shares of FNB Common Stock. The directors
and executive officers have agreed, subject to certain conditions, to vote these
shares in favor of the Company Merger. FNB anticipates that the affiliates of
its directors and executive officers will also vote in favor of the Plan of
Merger. Under Louisiana law, shareholders of Whitney are not required to approve
the Plan of Merger. See "The Meeting - Shares Entitled to Vote; Quorum; Vote
Required."
Reasons for the Plan of Merger
The Board of Directors of FNB believes that the approval of the Plan of
Merger is in the best interests of FNB and its shareholders. In reaching its
decision, the Board considered a number of factors, including FNB's and
Whitney's business and prospects; the price to be received by FNB's shareholders
and the premium that such price represented over the historical trading prices
for FNB Common Stock; and the opinion of The Robinson-Humphrey Company, Inc.
("Robinson-Humphrey") that the consideration to be received by FNB's
shareholders upon the consummation of the Plan of Merger is fair from a
financial point of view. See "The Plan of Merger - Background" and "The Plan of
Merger - Reasons for the Plan of Merger."
Recommendation of FNB's Board of Directors
THE BOARD OF DIRECTORS OF FNB HAS UNANIMOUSLY APPROVED THE PLAN OF
MERGER AND RECOMMENDS THAT ITS SHAREHOLDERS VOTE FOR APPROVAL OF THE PLAN OF
MERGER. SEE "THE PLAN OF MERGER - RECOMMENDATION OF FNB'S BOARD OF DIRECTORS."
Fairness Opinion of Robinson-Humphrey
Robinson-Humphrey has rendered its opinion to FNB's Board of Directors
that, based on and subject to the assumptions made, the factors considered, the
review undertaken and the limitations stated, the consideration to be received
by FNB's shareholders under the Plan of Merger is fair to FNB and its
shareholders from a financial point of view. Robinson-Humphrey's opinion is
directed only to the fairness of the terms of the Plan of Merger from a
financial point of view and does not constitute a recommendation to any
shareholder on how to vote at the Meeting. See "The Plan of Merger - Fairness
Opinion of The Robinson-Humphrey Company, Inc."
A copy of the fairness opinion of Robinson-Humphrey dated January 16,
1997 is attached as Appendix B and should be read in its entirety.
The Plan of Merger
General. Pursuant to the Plan of Merger, if all conditions are
satisfied or waived, on the effective date of the Company Merger (the "Effective
Date"), FNB will be merged into Whitney, and the separate existence of FNB will
iv
<PAGE>
cease, and FNBH will thereby become a wholly-owned subsidiary of Whitney.
Thereafter, in due course, FNBH will be merged into Whitney Bank, and the
separate existence of FNBH will cease. By reason of the Company Merger, the
outstanding shares of FNB Common Stock will be converted into a number of shares
of common stock, no par value, of Whitney ("Whitney Common Stock") with an
"Average Market Price" (as defined in the Plan of Merger) of $41,000,000, or
approximately $20.32 per share of FNB Common Stock. The actual number of shares
of Whitney Common Stock that will be received by an FNB shareholder by reason of
the Company Merger will vary depending upon the Average Market Price of the
Whitney Common Stock.
The "Average Market Price" is defined as the average of the closing per
share trading prices of Whitney Common Stock (adjusted appropriately for any
stock split, stock dividend, recapitalization, reclassification or similar
transaction that is effected, or for which a record date occurs) on the 20
trading days preceding the fifth trading day immediately prior to the Effective
Date; provided, however, that if the Average Market Price as so calculated is
less than $28.50 or greater than $36.50, the "Average Market Price" to be used
in calculating the number of shares of Whitney Common Stock to be issued in the
Company Merger shall be $28.50 or $36.50, as the case may be. Accordingly, if
the calculation of the Average Market Price of Whitney Common Stock results in
an amount equal to or greater than $36.50, then approximately 1,123,288 shares
of Whitney Common Stock will be issued in the Company Merger, notwithstanding
that the actual market value of those shares may be greater than $41,000,000.
Conversely, if the Average Market Price of Whitney Common Stock results in an
amount equal to or less than $28.50, approximately 1,438,596 shares of Whitney
Common Stock will be issued in the Company Merger, notwithstanding that the
aggregate value of those shares may be less than $41,000,000. On January 8,
1997, the closing trading price for a share of Whitney Common Stock was $35.00,
and if such date had been the Effective Date, the Average Market Price would
have been approximately $34.86.
Inasmuch as the consideration to be paid by Whitney in the Company
Merger will be based on the "Average Market Price" of Whitney Common Stock as
defined in the Plan of Merger, the actual value on the Effective Date of the
shares to be received by holders of FNB Common Stock in the Company Merger may
be more or less than the Average Market Price of those shares as calculated in
accordance with the Plan of Merger.
In lieu of issuing any fractional share of Whitney Common Stock, each
FNB shareholder who would otherwise be entitled thereto will receive a cash
payment (without interest) equal to such fractional share multiplied by the
Average Market Price.
See "The Plan of Merger - Description of the Plan of Merger -- General"
and "The Plan of Merger - Description of the Plan of Merger -- Conversion of
Common Stock."
For information regarding restrictions on the transfer of Whitney
Common Stock received pursuant to the Plan of Merger applicable to certain of
FNB's shareholders, see "The Plan of Merger - Status Under Federal Securities
Laws; Certain Restrictions on Resales."
Exchange of Certificates. Upon consummation of the Company Merger, a
letter of transmittal, together with instructions for the exchange of
certificates representing shares of FNB Common Stock for certificates
representing shares of Whitney Common Stock, will be mailed to each person who
was a shareholder of record of FNB on the Effective Date. Shareholders are
requested not to send in their stock certificates until they have received a
letter of transmittal and further written instructions.
Shareholders of FNB who cannot locate their stock certificates are
urged to contact promptly:
Sharon T. Roppolo
First National Bank of Houma
P.O. Box 6096
Houma, Louisiana 70361
(504) 853-7410
A new stock certificate will be issued to replace the lost certificate(s) only
upon execution by the shareholder of an affidavit certifying that his
certificate(s) cannot be located and containing an agreement to indemnify FNB
and Whitney
v
<PAGE>
against any claim that may be made against FNB or Whitney by the owner of the
certificate(s) alleged to have been lost or destroyed. FNB or Whitney may also
require the shareholder to post a bond in such sum as is sufficient to support
the shareholder's agreement to indemnify FNB and Whitney. See "The Plan of
Merger - Description of the Plan of Merger -- Exchange of Certificates."
Regulatory Approvals and Other Conditions to Consummation of the
Company Merger. In addition to approval by the shareholders of FNB, consummation
of the Company Merger is conditioned upon, among other things, (i) the accuracy
on the date of closing of the representations and warranties, and the compliance
with covenants, made in the Plan of Merger by each party, and the absence of any
material adverse change in the financial condition, results of operations,
business or prospects of the other party's consolidated group, (ii) the receipt
by Whitney of required regulatory approvals, (iii) the receipt by Whitney of
assurances that the Mergers may be accounted for as a pooling of interests, (iv)
the receipt by Whitney and FNB of opinions as to the qualification of the
Mergers as a tax-free reorganization under applicable law, (v) FNB's receipt of
a letter from Robinson-Humphrey, dated as of the date of the Meeting, in form
and substance satisfactory to FNB, confirming its fairness opinion to the Board
of Directors of FNB and (vi) certain other conditions customary for agreements
of this sort. The parties intend to consummate the Company Merger as soon as
practicable after all of the conditions to the Company Merger have been met or
waived.
On November 22, 1996, Whitney filed an application with the Board of
Governors of the Federal Reserve System (the "Reserve Board") seeking approval
of the Company Merger. There can be no assurance that this approval will be
obtained prior to the Meeting, or that this or the other conditions to
consummation of the Company Merger will be satisfied by such date or at all. See
"The Plan of Merger - Description of the Plan of Merger -- Regulatory Approvals
and Other Conditions of the Company Merger."
Waiver, Amendment and Termination. The Plan of Merger provides that
each of the parties to the Plan of Merger may waive any of the conditions to its
obligation to consummate the Company Merger other than approval by the
shareholders of FNB, the absence of a stop order suspending the effectiveness of
the Registration Statement of which this Proxy Statement-Prospectus forms a
part, the receipt of all necessary regulatory approvals, the satisfaction of all
requirements prescribed by law for consummation of the Company Merger, and FNB's
receipt of a letter from Robinson-Humphrey dated the date of the Meeting, in
form and substance satisfactory to FNB, confirming Robinson-Humphrey's fairness
opinion to the Board of Directors of FNB.
The Plan of Merger may be amended, at any time before or after its
approval by the shareholders of FNB, by the mutual agreement of the Boards of
Directors of the parties to the Plan of Merger; provided that, under the
Louisiana Business Corporation Law ("LBCL") any amendment made subsequent to
shareholder approval of the Company Merger may not alter the amount or type of
shares into which the FNB Common Stock will be converted, alter any term of the
Articles of Incorporation of Whitney as the surviving corporation in the Company
Merger, or alter any term or condition of the Plan of Merger in a manner that
would adversely affect any shareholder of FNB.
The Plan of Merger may be terminated at any time prior to the Effective
Date (i) by the mutual consent of Whitney and FNB; (ii) in the event of a breach
of any representation, warranty or covenant in the Plan of Merger that cannot be
cured by the earlier of 45 days after written notice of such breach or June 30,
1997; (iii) if the Company Merger has not occurred by June 30, 1997; (iv) if FNB
receives a written offer with respect to another acquisition transaction and the
Board of Directors of FNB determines in good faith, after consultation with its
financial advisers and counsel, that such transaction is more favorable to FNB's
shareholders than the transactions contemplated by the Plan of Merger; or (v) on
the basis of certain other grounds specified in the Plan of Merger. The Plan of
Merger provides for a termination fee of $2,000,000 payable to Whitney if FNB
terminates the Plan of Merger under the circumstances described in clause (iv)
of the preceding sentence. See "The Plan of Merger - Description of the Plan of
Merger -- Waiver, Amendment and Termination."
Accounting Treatment
Whitney intends to account for the Mergers as a pooling-of-interests,
and it is a condition to Whitney's obligation to consummate the Company Merger
that (i) it receive certain assurances from FNB's independent public accountants
that the Mergers may be accounted for as a pooling-of-interests and (ii) neither
Whitney's independent
vi
<PAGE>
public accountants nor the Securities and Exchange Commission shall have taken
the position that the transactions contemplated by the Plan of Merger do not
qualify for pooling-of-interests accounting treatment. See "The Plan of Merger -
Accounting Treatment."
Certain Federal Income Tax Consequences
Consummation of the Company Merger is conditioned upon receipt by
Whitney and FNB of an opinion from Arthur Andersen LLP to the effect that, among
other things, each of the Mergers will qualify as a tax-free reorganization
under applicable law and that each FNB shareholder who receives Whitney Common
Stock pursuant to the Company Merger will not recognize gain or loss except with
respect to the receipt of cash in lieu of fractional shares of Whitney Common
Stock. Because of the complexity of the tax laws, each shareholder should
consult his tax advisor concerning the applicable federal, state and local
income tax consequences of the Company Merger. See "Certain Federal Income Tax
Consequences."
Absence of Dissenters' Rights
An FNB shareholder who objects to the Company Merger does not have
"dissenter's rights" and, therefore, does not have the right to dissent from the
Company Merger and have paid to him in cash by Whitney the fair cash value of
his shares of FNB Common Stock.
Interests of Certain Persons
The executive officers and members of the Board of Directors of FNB
have interests in the Mergers that are in addition to their interest as
shareholders of FNB. These interests include, among others, payments and other
benefits to be received by one of FNB's former executive officers pursuant to an
agreement with FNB and FNBH; benefits that may arise under certain "change in
control" agreements among FNB, FNBH and certain of their officers; the
continuation of certain employee benefits generally; and provisions in the Plan
of Merger relating to indemnification of directors and officers of FNB and FNBH
and continuation of directors and officers liability insurance. See "The Plan of
Merger - Interests of Certain Persons."
Market Prices
On October 10, 1996, the last trading day preceding the date that
Whitney and FNB publicly announced that they had entered into the Plan of
Merger, the closing sales price for a share of Whitney Common Stock, as quoted
on the NASDAQ National Market System, was $33.00. No assurance can be given as
to the market price of Whitney Common Stock on the Effective Date. On January 8,
1997, the closing sales price for a share of Whitney Common Stock was $35.00,
and if such date had been the Effective Date, the Average Market Price would
have been approximately $34.86. See "Information About Whitney - Market Prices
of and Dividends Declared or Whitney Common Stock."
The closing sales price for a share of FNB Common Stock on the AMEX was
$19.625 on October 10, 1996. On January 8, 1997, the closing sales price
for a share of FNB Common Stock was $19.625. No assurance can be given as
to the market price of the FNB Common Stock on the Effective Date. See
"Information About FNB - Price Range of FNB Common Stock and Quarterly
Dividends."
Comparative Rights of Shareholders
If the Company Merger is consummated, all shareholders of FNB will
become shareholders of Whitney, and their rights will be governed by and be
subject to Whitney's Articles of Incorporation and Bylaws rather than those of
FNB. Whitney's Articles of Incorporation contain provisions that are different
from those of FNB, some of which may have the effect of discouraging a third
party from seeking to obtain control of Whitney in a transaction not approved by
Whitney's Board of Directors. See "Comparative Rights of Shareholders."
vii
<PAGE>
Selected Financial Data of FNB
The following selected financial data with respect to each of the
fiscal years in the five-year period ended December 31, 1995 have been derived
from FNB's audited consolidated financial statements. The selected financial
data for the nine months ended September 30, 1996 and 1995 have been derived
from FNB's unaudited financial statements, which, in the opinion of FNB's
management, reflect all adjustments that are necessary for a fair presentation
of the results of operations for the interim periods presented. The results of
operations for the nine-month period ended September 30, 1996 are not
necessarily indicative of the results to be expected for the entire year. The
information set forth below should be read in conjunction with FNB's
consolidated financial statements and notes thereto incorporated by reference
herein.
<TABLE>
<C> <C> <C> <C> <C> <C> <C> <C>
Nine months ended
September 30 Years ended December 31,
------------------ -----------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------- ------- ----------- ---------- ---------- -------- -----------
(In thousands, except per share data, unaudited)
Average Balance Sheet Data:
Total assets........................ $216,623 $203,262 $204,746 $192,504 $188,473 $191,302 $197,612
Earning assets...................... 197,979 184,679 186,699 175,259 172,054 172,784 178,002
Loans and leases, net of
unearned income and allowance..... 111,073 100,228 102,067 83,544 83,490 77,479 69,116
Investment securities............... 77,699 73,509 73,768 82,782 80,150 86,337 90,672
Interest bearing deposits........... 165,309 156,709 158,441 149,655 149,577 150,999 146,797
Noninterest bearing deposits........ 28,425 28,194 28,245 27,193 25,972 25,452 23,910
Shareholders' equity................ 17,409 14,954 15,217 11,339 9,078 7,037 6,125
Income Statement Data:
Total interest income............... $11,323 $11,509 $15,327 $13,257 $12,322 $13,032 $15,164
Net interest income................. 6,454 7,063 9,217 8,484 7,537 6,867 5,874
(Provision) credit for loan losses.. (100) 0 0 500 (51) (125) (4)
Non-interest income................. 1,556 1,377 1,793 676 1,563 1,711 1,534
Non-interest expense................ (5,240) (5,905) (7,404) (7,759) (7,512) (7,333) (7,324)
Net income.......................... 1,768 1,683 2,393 5,880 2,118 1,120 80
Per Share Data:
Earnings per share.................. $0.88 $0.83 $1.19 $2.91 $1.05 $0.56 $0.04
Cash dividends per share............ 0.21 0.10 0.16 0.10 - - -
Book value per share, end of period. 8.92 7.85 8.43 6.90 4.97 3.82 3.16
Key Ratios:
Net income as a percent of
average assets.................... 1.09% 1.11% 1.17% 3.05% 1.12% 0.59% 0.04%
Net income as a percent of
average equity.................... 13.54% 15.00% 15.70% 50.94% 22.31% 14.61% 1.15%
Net interest margin................. 4.35% 5.11% 4.94% 4.84% 4.38% 3.97% 3.30%
Allowance for loan losses as
a percent of loans and leases
at period end..................... 1.61% 2.47% 1.95% 3.05% 3.43% 2.92% 3.20%
Average equity as a percent
of average total assets........... 8.04% 7.36% 7.43% 5.89% 4.82% 3.68% 3.10%
Dividend payout ratio............... 23.96% 11.99% 13.49% 3.44% - - -
</TABLE>
viii
<PAGE>
Selected Financial Data of Whitney
The following selected financial data with respect to each of the
fiscal years in the five-year period ended December 31, 1995 and for the nine
months ended September 30, 1996 and 1995 have been derived from the consolidated
financial statements of Whitney's consolidated group and should be read in
conjunction with the information concerning Whitney that has been incorporated
by reference in this Proxy Statement-Prospectus. The selected financial data for
the nine months ended September 30, 1996 and 1995 have been derived from
Whitney's unaudited financial statements, which, in the opinion of Whitney's
management, reflect all adjustments that are necessary for a fair presentation
of the results of operations for the interim periods presented. The results of
operations for the nine-month period ended September 30, 1996 are not
necessarily indicative of the results to be expected for the entire year.
Selected financial data for the years 1991 through 1995 have been restated to
reflect the merger, effective March 8, 1996, of First Citizens Bankstock, Inc.
into Whitney (the "Citizens Acquisition"), which was accounted for as a
pooling-of-interests.
<TABLE>
<C> <C> <C> <C> <C> <C> <C>
Nine months ended
September 30, Years ended December 31,
------------------------ -----------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
----------- ----------- ----------- ----------- ----------- ------------ -----------
(In thousands, except per share data, unaudited)
Average Balance Sheet Data:
Total assets.................... $3,443,521 $3,161,339 $3,188,930 $3,182,674 $3,117,512 $3,061,976 $3,031,841
Total earning assets............ 3,123,305 2,855,426 2,880,631 2,877,898 2,817,526 2,761,104 2,717,010
Total loans..................... 1,661,418 1,271,942 1,321,533 1,096,672 1,056,679 1,225,546 1,450,497
Total investment in securities.. 1,437,898 1,525,965 1,505,492 1,704,687 1,637,619 1,362,006 1,096,086
Interest bearing deposits....... 1,886,518 1,807,628 1,813,093 1,860,866 1,855,153 1,871,189 1,858,429
Noninterest bearing deposits.... 821,231 805,557 811,616 792,448 765,457 723,932 681,233
Shareholders' equity............ 374,715 335,803 339,145 298,142 239,663 193,280 184,530
Income Statement Data:
Total interest income........... $172,907 $156,228 $213,295 $192,750 $186,105 $195,079 $223,303
Net interest income............. 109,294 103,625 141,428 135,247 131,424 122,321 107,314
Provision for (reduction in)
reserve for possible loan losses - (9,750) (9,400) (26,004) (59,625) 4,415 46,692
Non-interest income............. 27,232 25,083 33,205 34,175 33,216 29,557 28,341
Non-interest expense............ (95,030) (88,620) (119,481) (112,394) (108,237) (120,615) (112,303)
Net income (loss)............... 28,512 34,073 44,349 56,198 79,228 22,415 (3,181)
Per Share Data:
Primary earnings (loss) per
share........................ $ 1.66 $ 2.02 $ 2.61 $ 3.39 $ 4.81 $ 1.37 $(0.19)
Fully diluted earnings (loss)
per share..................... 1.66 2.00 2.60 3.39 4.81 1.37 (0.19)
Cash dividends per share........ 0.72 0.56 0.77 0.60 0.41 0.09 0.02
Book value per share, end of
period........................ 22.40 21.08 21.69 19.29 17.07 12.46 11.17
Key Ratios:
Net income (loss) as a percent
of average assets............ 1.10% 1.44% 1.39% 1.77% 2.54% 0.73% (0.10%)
Net income (loss) as a percent
of average equity............. 10.14% 13.53% 13.08% 18.85% 33.06% 11.60% (1.72%)
Net interest margin............. 4.81% 4.99% 5.05% 4.85% 4.79% 4.54% 4.06%
Allowance for loan losses as
a percent of loans and leases
at period end................. 2.41% 2.58% 2.48% 3.06% 4.28% 8.74% 7.94%
Average equity as a percent
of average total assets....... 10.88% 10.62% 10.63% 9.37% 7.69% 6.31% 6.09%
Dividend payout ratio........... 43.37% 28.00% 29.50% 17.70% 8.52% 6.57% -
</TABLE>
ix
<PAGE>
Comparative Per Share Data
The following table presents certain information for Whitney and FNB on
an historical, unaudited pro forma combined and unaudited pro forma equivalent
basis. The unaudited pro forma combined information is based upon the historical
financial condition and results of operations of Whitney and FNB and adjustments
directly attributable to the Plan of Merger based on estimates derived from
information currently available. This information does not purport to be
indicative of the results that would actually have been obtained if the Company
Merger had been consummated on the date or for the periods indicated below, or
the results that may be obtained in the future. Whitney expects to account for
the Company Merger using the pooling-of-interests method applied in accordance
with generally accepted accounting principles. Historical Whitney amounts for
1995 and prior periods have been restated to reflect the Citizens Acquisition.
See "- Selected Financial Data of Whitney."
<TABLE>
<C> <C>
Historical
------------------------ Pro Forma FNB
Whitney FNB Combined(1) Equivalent(2)
--------- -------- ----------- --------------
Earnings per common share:
Years ended:
December 31, 1995......................... $2.61 $1.19 $2.56 $1.60
December 31, 1994......................... $3.39 $2.91 $3.48 $2.18
December 31, 1993......................... $4.81 $1.05 $4.59 $2.87
Nine months ended September 30, 1996.......... $1.66 $0.88 $1.65 $1.03
Dividends declared per common share:
Years ended:
December 31, 1995......................... $0.77 $0.16 $0.74 $0.46
December 31, 1994......................... $0.60 $0.10 $0.57 $0.36
December 31, 1993......................... $0.41 - $0.38 $0.24
Nine months ended September 30, 1996.......... $0.72 $0.21 $0.69 $0.43
Book value per common share:
As of September 30, 1996...................... $22.40 $8.92 $21.84 $13.66
As of December 31, 1995....................... $21.69 $8.43 $21.07 $13.17
Market value per common share:
As of October 10, 1996(3)..................... $33.00 $19.625
As of January 8, 1997......................... $35.00 $19.625
</TABLE>
(1) Assuming an Average Market Price of Whitney Common Stock of $32.50 and
the issuance of 1,261,538 shares of Whitney Common Stock to effect the
Company Merger.
(2) The FNB Equivalent amounts are calculated by multiplying the amount in
the pro forma combined column by an exchange ratio of 0.6253 at the
assumed Average Market Price of $32.50.
(3) The trading day immediately preceding public announcement of the
execution of the Plan of Merger. See " - Market Prices."
-----------------------------------
Whitney recently completed mergers with Liberty Holding Company, its
majority-owned subsidiary, Liberty Bank, and American Bank and Trust, all of
Pensacola, Florida. Whitney has also entered into a definitive agreement to
acquire Merchants Bancshares, Inc. and its subsidiary, Merchants Bank & Trust
Co. It is intended that these transactions will be accounted for as
poolings-of-interests, but they are not considered material to Whitney for
purposes of presenting pro forma financial information. Therefore, information
regarding these transactions is not included in the foregoing table, and Whitney
historical amounts have not been restated to reflect the completed acquisitions.
See "Unaudited Pro Forma Condensed Combined Financial Information."
x
<PAGE>
THE MEETING
General
This Proxy Statement-Prospectus is furnished to shareholders of First
National Bankshares, Inc. ("FNB") in connection with the solicitation of proxies
on behalf of its Board of Directors for use at a special meeting of shareholders
of FNB (the "Meeting") to be held on the date and at the time and place
specified in the accompanying Notice of Special Meeting of Shareholders, or any
adjournment or postponement thereof.
FNB and Whitney Holding Corporation ("Whitney") have each supplied all
information included herein with respect to it and its consolidated
subsidiaries. FNB and its subsidiaries are sometimes collectively referred to
herein as "FNB's consolidated group" and Whitney and its subsidiaries are
sometimes collectively referred to herein as "Whitney's consolidated group."
Purpose of the Meeting
The purpose of the Meeting is to consider and vote upon a proposal to
approve an Agreement and Plan of Merger dated October 11, 1996, as amended,
between Whitney and its wholly-owned banking subsidiary, Whitney National Bank
("Whitney Bank"), on the one hand, and FNB and its wholly-owned subsidiary,
First National Bank of Houma ("FNBH"), on the other, and the related Joint
Agreement of Merger between Whitney and FNB (the "Company Merger Agreement" and,
together with the Agreement and Plan of Merger, the "Plan of Merger"). Pursuant
to the Plan of Merger,FNB will merge into Whitney (the "Company Merger"), and,
in due course, FNBH will merge into Whitney Bank (the "Bank Merger,"
which, together with the Company Merger, are collectively called the
"Mergers"). In consideration of the Company Merger, each outstanding share of
common stock, $2.50 par value, of FNB ("FNB Common Stock") will be converted
into a number of shares of common stock, no par value, of Whitney ("Whitney
Common Stock") as described under the heading captioned "The Plan of Merger -
Description of the Plan of Merger --Conversion of Common Stock."
Shares Entitled to Vote; Quorum; Vote Required
Only holders of record of FNB Common Stock at the close of business on
January 8, 1997 are entitled to notice of and to vote at the Meeting. On
that date, there were 2,017,600 shares of FNB Common Stock outstanding, each of
which is each entitled to one vote on each matter properly brought before the
Meeting.
With respect to consideration of the Plan of Merger and any other
matter properly brought before the Meeting, the presence at the Meeting, in
person or by proxy, of the holders of a majority of the outstanding shares of
FNB Common Stock is necessary to constitute a quorum. The Plan of Merger must be
approved by the affirmative vote of the holders of two-thirds of the shares of
FNB Common Stock present in person or represented by proxy at the Meeting.
Abstentions and broker non-votes will have the effect of votes against the Plan
of Merger. Broker non-votes will be counted for purposes of determining the
presence of a quorum.
Louisiana law does not require that shareholders of Whitney approve the
Plan of Merger.
Solicitation, Voting and Revocation of Proxies
A form of proxy for use at the Meeting accompanies this Proxy
Statement-Prospectus and will permit each holder of record of FNB Common Stock
on the record date for the Meeting to vote the shares of FNB Common Stock held
by him as of such date. A shareholder may use a proxy regardless of whether he
or she intends to attend the Meeting in person. Duly executed proxies will
authorize the persons named therein to vote on all other matters that properly
come before the Meeting or any adjournments or postponements thereof. Where a
shareholder specifies his choice on the proxy with respect to the proposal to
approve the Plan of Merger, the shares represented by the proxy will be voted in
accordance with such specification. If no such specification is made, the shares
will be voted in favor of the Plan of Merger. A proxy may be revoked by (i)
giving written notice of revocation at any time before its
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exercise to First National Bankshares, Inc., 7910 Main Street, Houma, Louisiana
70360, Attention: Secretary, or (ii) executing and delivering to the Secretary
at any time before its exercise a later dated proxy.
In addition to soliciting proxies by mail, directors, officers and
employees of FNB and FNBH, without receiving additional compensation therefor,
may solicit proxies by telephone and in person. Arrangements will also be made
with brokerage firms and other custodians, nominees and fiduciaries to forward
solicitation materials to the beneficial owners of shares of FNB Common Stock,
and FNB will reimburse such parties for reasonable out-of-pocket expenses
incurred in connection therewith. FNB will pay the cost of soliciting proxies.
Employee Stock Ownership Plan
Each employee of FNBH who is a participant in FNBH's Employee Stock
Ownership Plan and Trust (the "ESOP") may direct the trustee of the ESOP (the
"Trustee") as to the manner in which shares of FNB Common Stock allocated to
such participant's account under the ESOP (the "Plan Shares") shall be voted by
the Trustee at the Meeting on the proposal to approve the Plan of Merger. Each
ESOP participant has received with this Proxy Statement-Prospectus a Voting
Instruction Card to be used by the participant to give voting directions to the
Trustee. In order to direct the Trustee with respect to the voting of Plan
Shares, an ESOP participant must complete, sign, and date the Voting Instruction
Card and return it in the envelope provided so that it is received before the
date specified therein. The Trustee will cause the instructions received prior
to the date specified in the Voting Instruction Card to be tabulated by an
independent third party and will determine the aggregate votes for and against
approval of the Plan of Merger. The Trustee will vote the Plan Shares held by it
on the record date for which it has received instructions in the manner so
determined. The Trustee will not vote any Plan Shares on the proposal to approve
the Plan of Merger to the extent instructions are not received with respect
thereto. Approximately 66,840 shares of FNB Common Stock are held by the Trustee
pursuant to the ESOP on behalf of the participants in such plan.
THE PLAN OF MERGER
General
The transactions contemplated by the Plan of Merger are to be effected
in accordance with the terms and conditions set forth in the Plan of Merger,
which is incorporated herein by reference. The following brief description does
not purport to be complete and is qualified in its entirety by reference to the
Plan of Merger, a copy of which is attached hereto as Appendix A.
The ultimate result of the transactions contemplated by the Plan of
Merger will be that the business, properties, debts and liabilities of FNB will
become the business, properties, debts and liabilities of Whitney, and the
shareholders of FNB will become shareholders of Whitney. Upon consummation of
the Company Merger, FNBH will be a wholly-owned subsidiary of Whitney.
Thereafter, in due course, Whitney intends to cause a merger of FNBH into
Whitney Bank, at which time the business, properties, debts and liabilities of
FNBH will become the business, properties, debts and liabilities of Whitney
Bank. The steps taken to achieve this result involve the following transactions:
(i) FNB will merge into Whitney and the separate existence of FNB will cease;
(ii) shareholders of FNB will receive the consideration described below under
the heading captioned " - Description of the Plan of Merger -- Conversion of
Common Stock" and (iii) FNBH will, in due course, merge into Whitney Bank
and the separate existence of FNBH will cease.
Background
During 1993 and 1994, the FNB Board of Directors developed a strategic
plan to remain a strong community banking institution and, in connection with
that, to consider expansion of FNB's franchise through possible acquisitions by
FNB. In connection with that strategic plan, the Board retained the services of
an investment banker (which was not Robinson-Humphrey (as hereinafter defined))
(the "Initial Investment Banker") and began preparations for the listing of the
FNB Common Stock on the AMEX.
During the course of the Board's evaluation, with the assistance of the
Initial Investment Banker, of potential institutions for acquisition by, or
possible "merger of equals" with, FNB, a larger financial institution contacted
FNB and expressed an interest in acquiring FNB. As part of the Board's
evaluation of the best course to enhance value for
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FNB's shareholders, the Board in late 1994 authorized the Initial Investment
Banker, through an "indication of interest" process, to provide financial
information to that and several other larger financial institutions and to
explore the level of interest of such institutions in an acquisition of FNB.
During the process of soliciting such indications of interest, FNB was
approached by Whitney, which was also supplied such financial information. The
Board, with the assistance of the Initial Investment Banker, evaluated the
indications of interest received from the larger financial institutions that
indicated an interest in acquiring FNB and determined that the price at which
those institutions proposed to acquire FNB was inadequate. In the Spring of
1995, the Board terminated its discussions with potential acquirors and,
thereafter, resumed its consideration of other avenues to enhance shareholder
value, implemented listing of the FNB Common Stock on the AMEX in April of 1995,
and held discussions with various smaller and comparable sized financial
institutions concerning the acquisition of such smaller institutions or a
"merger of equals," none of which proceeded beyond initial discussions.
In June 1996, William L. Marks, Chairman of the Board and Chief
Executive Officer of Whitney, contacted James J. Buquet, Jr., Chairman of the
Board of FNB and FNBH, by telephone to indicate Whitney's interest in acquiring
FNB. Subsequent thereto, members of the Board of Directors of FNB were advised
of the telephone call and, on June 28, 1996, a meeting was held between members
of the Board of Directors of FNB and representatives of Whitney, at which time
the parties discussed the general terms of any proposal Whitney might make,
including the range of suggested value for FNB. On July 3, 1996, a
Confidentiality Agreement and financial information with respect to FNB were
sent by FNB to Whitney, which Confidentiality Agreement was executed and
returned by Whitney on July 10, 1996. Subsequent thereto, on July 19, 1996, Mr.
Marks telephoned Jerome H. Mire, President of FNB, and indicated Whitney's
interest in acquiring FNB at a stated value. On that same date, Mr. Marks
confirmed his conversation with Mr. Mire by letter.
On July 25, 1996, the Board of Directors of FNB met, discussed the
indication of interest received from Whitney, and approved the hiring of The
Robinson-Humphrey Company, Inc. ("Robinson-Humphrey") as its financial advisor
to provide advice and assistance with respect to strategic alternatives
available to FNB, to perform related valuation analyses, and to assist FNB in
the event of a merger or other business combination. The Board selected
Robinson-Humphrey based on its knowledge of financial institutions in general
and its experience as a financial advisor in mergers and acquisitions of
financial institutions, particularly in the southern region of the U.S.
Thereafter, on August 19, 1996, Robinson-Humphrey and special counsel to FNB
made presentations to the Board of Directors of FNB. Robinson-Humphrey's
presentation included a detailed financial analysis of several banks in the
southern United States who had been active in acquisitions, including Whitney,
and an analysis of FNB, assuming that it remained independent. At these
presentations Robinson-Humphrey also reviewed the financial terms of recent
Louisiana bank acquisitions as well as other bank acquisitions in the United
States. Subsequent to that meeting, representatives of Robinson-Humphrey
contacted Mr. Marks with respect to the terms of Whitney's proposed offer and,
on August 29, 1996, reported to the Board of Directors of FNB in detail on
Whitney's response.
Discussions continued between the parties and on September 12, 1996
representatives of Robinson-Humphrey made a further report to the Board of
Directors of FNB and special counsel reviewed with the Directors key unresolved
issues with respect to the proposed documentation of the transaction. The Board
of Directors instructed FNB's representatives to negotiate further with Whitney
with respect to the terms of the transaction and then report back to the Board.
There followed further discussions between representatives of the
parties and their respective counsel. Preliminary due diligence by Whitney,
which had begun subsequent to the August 29, 1996 meeting of the Board of
Directors of FNB, continued, and on September 26, 1996, the Board of Directors
of FNB met to hear a presentation by special counsel on the proposed Agreement
and Plan of Merger that had been negotiated between the parties. In addition,
Robinson-Humphrey made a detailed presentation to the Board of Directors on the
fairness of the consideration proposed to be provided by Whitney in connection
with the proposed transaction, including a valuation analysis of FNB and the
consideration proposed to be paid, detailed information with respect to Whitney,
including a comparison of Whitney with other financial institutions, as well as
an historical financial review and analysis of Whitney Common Stock and its
price and volume history. In response to questions of the Board,
Robinson-Humphrey also advised the Board that although certain other financial
institutions had the theoretical capacity, based on certain assumptions, to pay
an equal or higher value than that represented by the consideration being
offered by Whitney, Robinson-Humphrey was of the view, based on its general
assessment of the strategic interests of such other potential acquirors, that it
would be
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unlikely that other potential acquirors would have the willingness to pay such
equal or higher amounts. Subsequent to the September 26, 1996 meeting of the
Board of Directors, Whitney conducted more extensive "due diligence" following
which, on October 11, 1996, the Board of Directors of FNB met, special counsel
reviewed in detail with the Board of Directors a revised draft of the Agreement
and Plan of Merger and related documents, representatives of Robinson-Humphrey
reviewed again with the Board the consideration that Whitney was offering
pursuant to the proposed Agreement and Plan of Merger and advised the members of
the Board that Robinson-Humphrey was of the opinion that, from a financial point
of view, the consideration provided in the proposed Agreement and Plan of Merger
was fair to the shareholders of FNB. Robinson-Humphrey also reiterated its
previously-expressed view that it would be unlikely that other potential
acquirors would have the willingness to pay an amount equal to or higher than
the consideration being offered by Whitney. Robinson-Humphrey thereafter
confirmed its advice as to the fairness of the consideration to be paid by
Whitney by delivering to the FNB Board of Directors its written opinion dated
October 11, 1996, which has been updated through January 16, 1997. After
approval by Whitney's Board of Directors on September 25, 1996 and by FNB's
Board of Directors on October 11, 1996, Whitney and FNB executed the Agreement
and Plan of Merger on October 11, 1996, which was amended on December 10, 1996
to make certain technical changes.
Reasons for the Plan of Merger
General. The financial and other terms of the Plan of Merger are the
result of arm's-length negotiations between representatives of Whitney and FNB.
Determination of the consideration to be received by FNB's shareholders was
based upon many factors considered by the Boards of Directors of Whitney and
FNB, including the comparative financial condition, historical results of
operations, current business and future prospects of Whitney, FNB, Whitney Bank
and FNBH, the market price and historical earnings per share of the common stock
of Whitney and FNB, and the desirability of combining the financial and
managerial resources of Whitney Bank and FNBH to pursue consumer and commercial
banking business in the markets currently served by FNBH.
Whitney. Whitney's business strategy includes expansion in the Gulf
Coast region. Whitney's management identified FNBH as an institution that fit
well with this strategy. FNBH's five locations in Houma and Chauvin, Louisiana
would expand Whitney's presence in southeast Louisiana, bridging Whitney's
metropolitan New Orleans branch structure with its recently acquired Morgan
City, Franklin and Berwick, Louisiana branches to the west.
In deciding to pursue an acquisition of FNB and FNBH, Whitney's
management and the Executive Committee of Whitney's Board of Directors noted,
among other things, the following: (i) FNBH's deposit base and branch network in
Terrebonne Parish; (ii) FNBH's stable, experienced management team and staff;
(iii) FNBH's performance during the economic downturns of the 1980's in
Louisiana; and (iv) FNB's capitalization and asset quality. Other avenues for
expansion such as de novo branching were also considered and determined to be
less desirable than a merger with FNBH because FNBH's size and location will
afford Whitney a base from which to build on what it believes to be the strength
of the Whitney name in Terrebonne Parish, Louisiana.
FNB. The Board of Directors of FNB believes that approval of the Plan
of Merger is in the best interests of FNB and its shareholders. In reaching its
decision to approve the terms of the Plan of Merger, the Board of Directors of
FNB considered a number of factors, including, without limitation, the
following:
1. The Board's familiarity with FNB's business, operations, financial
condition, earnings and prospects, and its investigation of similar matters
concerning Whitney.
2. The current and prospective economic environment and competitive
constraints facing FNB, including specifically the increasing regulatory burdens
on small, community based banks and the greater variety of products and services
that larger competitors can offer to customers.
3. The price to be received by FNB's shareholders, including the
substantial premium which that price represented over the historical trading
prices for FNB Common Stock and the favorable comparison to prices recently
received by shareholders of other similarly situated banks, and the relation of
such price to the Board's view of alternatives to the Mergers.
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4. The financial presentations and advice of Robinson-Humphrey, FNB's
independent financial advisors, and the opinion of Robinson-Humphrey that the
consideration to be received by FNB's shareholders pursuant to the Plan of
Merger is fair to FNB and its shareholders from a financial point of view.
A copy of such opinion, updated through the date of this Proxy Statement-
Prospectus, is attached hereto as Appendix B and is incorporated herein by
reference.See "- Fairness Opinion of The Robinson-Humphrey Company, Inc." below.
5. The expectation that the receipt of the Whitney Common Stock will be
a tax-free transaction to FNB's shareholders.
6. The continued liquidity that the Plan of Merger would provide to
current FNB's shareholders.
7. The effects of the Plan of Merger on customers and employees of FNB
and FNBH.
The discussion of the information and factors considered and given
weight by the Board of Directors of FNB is not intended to be exhaustive. In
view of the variety of factors considered in connection with its evaluation of
the Plan of Merger, the Board did not quantify or otherwise assign relative
weights to the specific factors considered in reaching its determination. In
addition, individual members of the Board may have given different weights to
different factors.
Recommendation of FNB's Board of Directors
THE BOARD OF DIRECTORS OF FNB HAS UNANIMOUSLY APPROVED THE PLAN OF
MERGER AND UNANIMOUSLY RECOMMENDS THAT FNB's SHAREHOLDERS VOTE FOR APPROVAL OF
THE PLAN OF MERGER.
Fairness Opinion of The Robinson-Humphrey Company, Inc.
General. FNB retained Robinson-Humphrey to act as its financial advisor
in connection with the Mergers. As part of its investment banking business,
Robinson-Humphrey is regularly engaged in the valuation of securities in
connection with mergers and acquisitions, negotiated underwritings, secondary
distributions of listed and unlisted securities, private placements, and
valuations for estate, corporate and other purposes. FNB's Board of Directors
decided to retain Robinson-Humphrey based on its experience as a financial
advisor in mergers and acquisitions of financial institutions, particularly
transactions in the southern region of the United States. Robinson-Humphrey has
rendered an opinion to FNB's Board of Directors that, based on the matters set
forth therein, the consideration to be received pursuant to the Plan of Merger
is fair, from a financial point of view, to FNB and its shareholders. The text
of such opinion is set forth in Appendix B to this Proxy Statement-Prospectus
and should be read in its entirety.
The consideration to be received by FNB's shareholders pursuant to the
Plan of Merger was determined by FNB and Whitney in their negotiations. No
limitations were imposed by the Board of Directors or management of FNB upon
Robinson-Humphrey with respect to the investigations made or the procedures
followed by Robinson-Humphrey in rendering its opinion.
In connection with rendering its opinion to FNB's Board of Directors,
Robinson-Humphrey performed a variety of financial analyses. However, the
preparation of a fairness opinion involves various determinations as to the most
appropriate and relevant methods of financial analysis and the application of
those methods to the particular circumstances, and, therefore, such an opinion
is not readily susceptible to summary description.
In conducting its analyses and in arriving at its opinion,
Robinson-Humphrey has not conducted a physical inspection of any of the
properties or assets of FNB, and has not made or obtained any independent
valuation or appraisals of any properties, assets or liabilities of FNB. Its
opinion is based on economic, market and other conditions as in effect on, and
the information made available to it as of, the date of its analyses. In
connection with rendering its opinion, Robinson-Humphrey reviewed, and has
assumed and relied upon the accuracy and completeness of, the financial and
other information that was provided to it by FNB or that was publicly available,
including FNB's financial results for fiscal years 1991 through 1995 and for the
first three quarters of 1996, and held discussions with senior
management of FNB. Robinson-Humphrey also studied published financial data
concerning certain other publicly
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traded banks comparable to FNB, certain financial data relating to comparable
transactions and certain information and data relating to Whitney, including its
financial statements from the fiscal years 1991 through 1995 and for the
six-month period ended June 30, 1996.
Valuation Methodologies. In connection with its opinion on the Company
Merger and the presentation of that opinion to FNB's Board of Directors,
Robinson-Humphrey performed two valuation analyses with respect to FNB: (i) an
analysis of prices and terms of recent comparable transactions involving banks
purchasing banks; and (ii) a discounted cash flow analysis. For purposes of the
comparable transaction analyses, Whitney Common Stock was valued at $32.50 per
share. Each of these methodologies is discussed briefly below.
Comparable Transaction Analysis. Robinson-Humphrey performed three
analyses of premiums paid for selected banks with comparable characteristics to
FNB. Comparable transactions were considered to be (i) transactions since
January 1, 1995, where the seller was a bank located in Louisiana, (ii)
transactions since January 1, 1996 where the seller was a bank located in the
Southeast with total assets between $100 million and $500 million, and (iii)
transactions since January 1, 1996, where the seller was a bank located in the
Southwest with total assets between $100 and $500 million.
Based on the first of the foregoing classes of transactions, financial
institutions purchasing banks in Louisiana since January 1, 1995, the analysis
yielded a range of transaction values to book value of 1.10 times to 2.71 times,
with a mean of 2.08 times and a median of 2.15 times. These compare to a
transaction value for the Company Merger of approximately 2.35 times FNB's book
value as of June 30, 1996.
The analysis yielded a range of transaction values as a multiple of
tangible book value for the comparable transactions ranging from 1.42 times to
2.75 times, with a mean of 2.11 times and a median of 2.15 times. These compare
to a transaction value to tangible book value at June 30, 1996 of approximately
2.35 times for the Company Merger.
The analysis yielded a range of transaction values as a multiple of
trailing twelve month earnings per share. These values ranged from 9.12 times to
24.86 times, with a mean of 15.68 times and a median of 16.21 times. These
compare to a transaction value to FNB's last twelve months earnings as of June
30, 1996 of approximately 16.55 times for the Company Merger.
The analysis yielded a range of transaction values as a percent of
total assets. These values ranged from 12.31 percent to 27.28 percent, with a
mean of 19.76 percent and a median of 19.92 percent. These compare to a
transaction value to the June 30, 1996 total assets of 19.53 percent for the
Company Merger.
Based on transactions since January 1, 1996, where the seller was a
bank located in the Southeast with total assets between $100 and $500 million,
the analysis yielded a range of transaction values to book value of 0.93 times
to 2.47 times, with a mean of 1.96 times and a median of 2.03 times. These
compare to a transaction value for the Company Merger of approximately 2.35
times FNB's book value as of June 30, 1996.
The analysis yielded a range of transaction values as a multiple of
tangible book value for the comparable transactions ranging from 1.22 times to
2.54 times, with a mean of 2.01 times and a median of 2.03 times. These compare
to a transaction value to tangible book value at June 30, 1996 of approximately
2.35 times for the Company Merger.
The analysis yielded a range of transaction values as a multiple of
trailing twelve month earnings per share. These values ranged from 5.43 times to
29.75 times, with a mean of 19.59 times and a median of 21.03 times. These
compare to a transaction value to FNB's last twelve months earnings as of June
30, 1996 of approximately 16.55 times for the Company Merger.
The analysis yielded a range of transaction values as a percent of
total assets. These values ranged from 8.58 percent to 26.74 percent, with a
mean of 19.34 percent and a median of 17.69 percent. These compare to a
transaction value to the June 30, 1996 total assets of 19.53 percent for the
Company Merger.
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Based on transactions since January 1, 1996, where the seller was a
bank located in the Southwest with total assets between $100 and $500 million,
the analysis yielded a range of transaction values to book value of 1.26 times
to 2.51 times, with a mean of 2.04 times and a median of 2.17 times. These
compare to a transaction value for the Company Merger of approximately 2.35
times FNB's book value as of June 30, 1996.
The analysis yielded a range of transaction values as a multiple of
tangible book value for the comparable transactions ranging from 1.26 times to
3.00 times, with a mean of 2.12 times and a median of 2.17 times. These compare
to a transaction value to tangible book value at June 30, 1996 of approximately
2.35 times for the Company Merger.
The analysis yielded a range of transaction values as a multiple of
trailing twelve month earnings per share. These values ranged from 8.46 times to
23.95 times, with a mean of 13.85 times and a median of 12.72 times. These
compare to a transaction value to FNB's last twelve months earnings as of June
30, 1996 of approximately 16.55 times for the Company Merger.
The analysis yielded a range of transaction values as a percent of
total assets. These values ranged from 15.69 percent to 25.41 percent, with a
mean of 19.87 percent and a median of 18.94 percent. These compare to a
transaction value to the June 30, 1996 total assets of 19.53 percent for the
Company Merger.
No company or transaction used in the comparable transaction analyses
is identical to FNB. Accordingly, an analysis of the foregoing necessarily
involves complex considerations and judgments, as well as other factors that
affect the public trading value or the acquisition value of the company to which
it is being compared.
Discounted Cash Flow Analysis. Using discounted cash flow analysis,
Robinson-Humphrey estimated the present value of the future stream of after-tax
cash flows that FNB could produce through the year 2000, under various
circumstances, assuming that FNB performed in accordance with the
earnings/return projections of management at the time that FNB entered into
acquisition discussions in July 1996. Robinson-Humphrey estimated the terminal
value for FNB at the end of the period by applying multiples of earnings ranging
from 10.0 to 12.0x and then discounting the cash flow streams, dividends paid to
shareholders and terminal value using differing discount rates ranging from 9.0
percent to 11.0 percent chosen to reflect different assumptions regarding the
required rates of return of FNB and the inherent risk surrounding the underlying
projections. This discounted cash flow analysis indicated a reference range of
$22.4 million to $29.2 million, or $16.95 to $20.50 per share, for FNB.
Compensation of Robinson-Humphrey. FNB has paid Robinson-Humphrey
$75,000 for its services to date, including the delivery of its fairness opinion
to the Board of Directors of FNB. If the Company Merger is consummated, FNB will
pay Robinson-Humphrey a fee equal to $301,385 plus 2.5% of the excess of the
aggregate value of the transaction in excess of $40,184,680 (less amounts
previously paid). FNB also has agreed to reimburse Robinson-Humphrey for certain
expenses reasonably incurred in connection with their engagement and to
indemnify Robinson-Humphrey against certain liabilities arising in connection
with its engagement, including certain liabilities arising under federal
securities laws.
Description of the Plan of Merger
General. Pursuant to the Plan of Merger, if all conditions are
satisfied or waived, on the effective date of the Company Merger (the "Effective
Date"), FNB will be merged into Whitney, the separate existence of FNB will
cease, and FNBH will become a wholly-owned subsidiary of Whitney. By reason of
the Company Merger, the outstanding shares of FNB Common Stock will be converted
into a number of shares of common stock, no par value, of Whitney ("Whitney
Common Stock") with an "Average Market Price" (as defined in the Plan of Merger)
of $41,000,000, or approximately $20.32 per share of FNB Common Stock. The
actual number of shares of Whitney Common Stock that will be received by an FNB
shareholder by reason of the Company Merger will vary depending upon the Average
Market Price of the Whitney Common Stock. See "- Conversion of Common Stock,"
below.
Conversion of Common Stock. The Plan of Merger provides that
shareholders of FNB will receive a total number of shares of Whitney Common
Stock equal to $41,000,000, divided by the "Average Market Price" of a share of
Whitney Common Stock (with cash being paid in lieu of fractional shares). The
"Average Market Price" is defined
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as the average of the closing per share trading prices of Whitney Common Stock
(adjusted appropriately for any stock split, stock dividend, recapitalization,
reclassification or similar transaction that is effected, or for which a record
date occurs) on the 20 trading days preceding the fifth trading day immediately
prior to the Effective Date, as reported in the Wall Street Journal; provided,
however, that if the Average Market Price as so calculated is less than $28.50
or greater than $36.50, the "Average Market Price" to be used in calculating the
number of shares of Whitney Common Stock to be issued in the Company Merger
shall be $28.50 or $36.50, as the case may be. Accordingly, if the calculation
of the Average Market Price of Whitney Common Stock results in an amount equal
to or greater than $36.50, then approximately 1,123,288 shares of Whitney Common
Stock will be issued in the Company Merger, notwithstanding that the actual
market value of those shares may be greater than $41,000,000. Conversely, if the
Average Market Price of Whitney Common Stock results in an amount equal to or
less than $28.50, approximately 1,438,596 shares of Whitney Common Stock will be
issued in the Company Merger, notwithstanding that the aggregate value of those
shares may be less than $41,000,000.
The following table sets forth examples of the number of shares of
Whitney Common Stock into which each share of FNB Common Stock would be
converted on the Effective Date, assuming that the Average Market Price for
Whitney Common Stock is as specified below.
Assumed Average Total Number of Shares of Number of Whitney
Market Price of Whitney Whitney Common Stock Shares Per
Common Stock To Be Issued FNB Share(1)
- ----------------------- ------------------------- ------------------
$28.50(2) 1,438,596 0.7130
30.50 1,344,262 0.6663
32.50 1,261,538 0.6253
34.50 1,188,406 0.5890
36.50(3) 1,123,288 0.5567
- ------------------------
(1)Based on 2,017,600 shares of FNB Common Stock, the number of shares
outstanding on January 8, 1997. Due to fluctuations in the trading prices
of Whitney Common Stock, the actual number of shares of Whitney Common
Stock to be received by FNB's shareholders cannot currently be
determined.
(2)Minimum "Average Market Price" under the terms of the Plan of Merger.
(3)Maximum "Average Market Price" under the terms of the Plan of Merger.
-----------------------
On January 8, 1997, the closing trading price for a share of Whitney
Common Stock was $35.00, and if such date had been the Effective Date, the
Average Market Price would have been approximately $34.86.
Inasmuch as the consideration to be paid by Whitney in the Company
Merger will be based on the "Average Market Price" of Whitney Common Stock as
defined in the Plan of Merger, the actual value on the Effective Date of the
shares to be received by holders of FNB Common Stock in the Company Merger may
be more or less than the Average Market Price of those shares as calculated in
accordance with the Plan of Merger.
In lieu of issuing any fractional share of Whitney Common Stock, each
shareholder of FNB who would otherwise be entitled thereto will receive a cash
payment (without interest) equal to such fractional share multiplied by the
Average Market Price. The per share exchange ratio in the Company Merger will be
less than one-to-one; accordingly, any FNB shareholder holding fewer than
two shares of FNB Common Stock will not receive any Whitney Common Stock in the
Company Merger, but instead will receive solely cash in exchange for his shares
of FNB Common Stock.
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For information regarding restrictions on the transfer of Whitney
Common Stock received pursuant to the Plan of Merger applicable to certain of
FNB's shareholders, see "Status Under Federal Securities Laws; Certain
Restrictions on Resales."
Exchange of Certificates. On the Effective Date, each FNB shareholder
will cease to have any rights as a shareholder of FNB and his sole rights will
pertain to the shares of Whitney Common Stock into which his shares of FNB
Common Stock have been converted pursuant to the Company Merger. See "Absence of
Dissenters' Rights."
Promptly after the consummation of the Company Merger, Whitney is
required (a) to deposit with the exchange agent selected by Whitney for the
Company Merger certificates representing the shares of Whitney Common Stock and
the cash in lieu of fractional shares to be issued and paid in exchange for
shares of FNB Common Stock and (b) send or cause to be sent to each person who
was a shareholder of record of FNB on the Effective Date a letter of
transmittal, together with instructions for the exchange of certificates
representing shares of FNB Common Stock for certificates representing shares of
Whitney Common Stock.
Shareholders are requested not to send in their FNB Common Stock
certificates until they have received a letter of transmittal and further
written instructions after the Effective Date. Please do NOT send in your stock
certificates with your proxy.
After the Effective Date and until surrendered, certificates
representing FNB Common Stock will be deemed for all purposes, other than the
payment of dividends or other distributions, if any, in respect of Whitney
Common Stock, to represent the number of whole shares of Whitney Common Stock
into which such shares have been converted. Whitney, at its option, may decline
to pay former shareholders of FNB who become holders of Whitney Common Stock
pursuant to the Company Merger any dividends or other distributions that may
have become payable to holders of record of Whitney Common Stock following the
Effective Date until they have surrendered their certificates evidencing
ownership of shares of FNB Common Stock, at which time any such dividends or
other distributions will be paid, without interest.
Shareholders of FNB who cannot locate their stock certificates are
urged to contact promptly:
Sharon T. Roppolo
First National Bank of Houma
P.O. Box 6096
Houma, Louisiana 70361
(504) 853-7410
A new stock certificate will be issued to replace the lost certificate(s) only
upon execution by the shareholder of an affidavit certifying that his
certificate(s) cannot be located and containing an agreement to indemnify FNB
and Whitney against any claim that may be made against FNB or Whitney by the
owner of the certificate(s) alleged to have been lost or destroyed. FNB or
Whitney may also require the shareholder to post a bond in such sum as is
sufficient to support the shareholder's agreement to indemnify FNB and Whitney.
Transfer and Exchange Agents. Boatmen's Trust Company serves as
Transfer Agent and Registrar for Whitney Common Stock and will act as Exchange
Agent in connection with the Company Merger. The trust department of FNBH acts
as Transfer Agent and Registrar for the FNB Common Stock.
Regulatory Approvals and Other Conditions of the Company Merger. In
addition to approval by the shareholders of FNB and satisfaction of the other
conditions described below, consummation of the Company Merger will require the
approval of the Board of Governors of the Federal Reserve System (the "Reserve
Board"). On November 22, 1996, Whitney filed an application with the Reserve
Board seeking approval of the Company Merger. Whitney is currently awaiting
final approval of that application; however, there can be no assurance that it
will be obtained prior to the Meeting or at all.
The obligations of the parties to the Plan of Merger are also subject
to other conditions set forth in the Plan of Merger, including, among others:
(i) the accuracy on the date of closing in all material respects of the
representations
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<PAGE>
and warranties, and the compliance with covenants, made in the Plan of Merger by
each party, and the absence of any material adverse change in the financial
condition, results of operations, business or prospects of the other party's
consolidated group, (ii) the receipt by Whitney of required regulatory
approvals, (iii) the receipt by Whitney of assurances that the Mergers may be
accounted for as a pooling of interests, (iv) the receipt by Whitney and FNB of
opinions as to qualification of the Mergers as a tax-free reorganization under
applicable law, (v) FNB's receipt of a letter from Robinson-Humphrey, dated as
of the date of the Meeting, in form and substance satisfactory to FNB,
confirming its fairness opinion to the Board of Directors of FNB and (vi)
certain other conditions customary for agreements of this sort.
The parties intend to consummate the Company Merger as soon as
practicable after all of the conditions to the Company Merger have been met or
waived; however, there can be no assurance that the conditions to the Company
Merger will be satisfied.
Effective Date. As soon as practicable after shareholder and regulatory
approval is obtained and all other conditions to the consummation of the Plan of
Merger have been satisfied or waived, the Joint Agreement of Merger respecting
the Company Merger will be executed by Whitney and FNB and filed for recordation
with the Secretary of State of Louisiana, and the Company Merger will be
effective at the date and time specified in a certificate issued by the
Louisiana Secretary of State. The Plan of Merger provides that Whitney may delay
consummation of the Bank Merger, and it is intended that the Bank Merger will be
consummated in due course after consummation of the Company Merger, but not
later than the last quarter of 1997. The Office of the Comptroller of the
Currency would have to approve the Bank Merger. Whitney and FNB are not able to
predict the effective date of the Company Merger or the Bank Merger and no
assurance can be given that the transactions contemplated by the Plan of Merger
will be effected at any time. See "- Regulatory Approvals and Other Conditions
of the Company Merger."
Conduct of Business Prior to the Effective Date. FNB and FNBH have
agreed pursuant to the Plan of Merger that, prior to the Effective Date, each
will conduct its business only in the ordinary course consistent with past
practices and that, without the prior written consent of the chief executive
officer of Whitney or his duly authorized designee, and except as otherwise
provided in the Plan of Merger, each will not, among other things, (a) declare
or pay any dividend, declare or make any distribution on or directly or
indirectly combine, redeem, reclassify, purchase or otherwise acquire any shares
of capital stock or authorize the creation or issuance of or issue any
additional shares of capital stock or securities or obligations convertible into
or exchangeable therefor except the payment of regular quarterly dividends by
FNB in amounts not to exceed $.07 per share payable quarterly (in the case of
dividends declared in 1996) and up to $.08 per share payable quarterly (in the
case of dividends declared in 1997), provided that any increase from $.07 per
share does not disqualify the Mergers as a pooling-of-interests for accounting
purposes or as a "reorganization" within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended; (b) amend its Articles of
Incorporation or Association or By-Laws or adopt or amend any resolution or
agreement concerning indemnification of directors or officers; (c) enter into or
modify any agreement requiring the payment of any salary, bonus, extra
compensation, pension or severance payment to any of its current or former
directors, officers or employees except (i) such agreements as are terminable at
will without penalty or other payment by it, or increase the compensation of any
such person in any manner inconsistent with its past practices and (ii) after
consultation with Whitney's chief executive officer, bonuses to certain officers
and employees in amounts not exceeding $150,000 in the aggregate (such bonuses
to be paid on the full conversion of FNBH's data processing system to Whitney
Bank's system and in no event later than November 1, 1997); (d) except in the
ordinary course of business consistent with past practices, place or suffer to
exist on any of its assets or properties any mortgage, pledge, lien, charge or
other encumbrances (except as expressly allowed under the Plan of Merger)
or cancel any material indebtedness owing to it or any claims it may have
possessed, or waive any right of substantial value or discharge or satisfy any
material non-current liability; (e) acquire another business or merge or
consolidate with another entity or sell or otherwise dispose of a material part
of its assets except in the ordinary course of business consistent with past
practices; (f) commit any act that is intended or reasonably may be expected to
result in any of its representations and warranties becoming untrue in any
material respect or in any of the conditions to the Mergers not being satisfied
or in a violation of any provision of the Plan of Merger, except as may be
required by applicable law; (g) commit or fail to take any action that is
intended or reasonably may be expected to result in a material breach or
violation of any applicable law, statute, rule, governmental regulation or
order; (h) fail to maintain its books, accounts and records in the usual manner
on a basis consistent with that previously employed; (i) fail to pay or to make
adequate provision in all material respects for the payment of all taxes,
interest payments and penalties due and payable, except those being contested in
good faith by appropriate proceedings and for which sufficient reserves
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<PAGE>
have been established; (j) dispose of investment securities in amounts or in a
manner inconsistent with past practices, or make investments in non-investment
grade securities or that are inconsistent with past investment practices; (k)
enter into any new line of non-banking business; (l) charge off (except as
required by law or regulatory authorities or generally accepted accounting
principles consistently applied) or sell (except for a price not materially less
than the value thereof) any of its portfolio of loans, discounts or financing
leases, or sell any asset held as other real estate or other foreclosed assets
for an amount materially less than 100% of its book value as of June 30, 1996;
(m) make any extension of credit that, when added to all other extensions of
credit to a borrower and its affiliates, would exceed FNB's or FNBH's applicable
regulatory lending limits; (n) take or cause to be taken any action that would
disqualify the Mergers as a "pooling-of-interests" for accounting purposes or as
a "reorganization" within the meaning of Section 368(a) of the Internal Revenue
Code; or (o) agree or commit to do any of the foregoing.
In addition, FNB and FNBH have agreed that neither of them will,
without the prior approval of Whitney, solicit or initiate inquiries or
proposals with respect to, or, except to the extent determined by FNB's Board of
Directors in good faith, after consultation with its financial advisors and
legal counsel, to discharge properly the directors' fiduciary duties to FNB's
consolidated group and its shareholders, furnish any information relating to, or
participate in any negotiations or discussions concerning, any acquisition or
purchase of all or a substantial portion of its assets, or of a substantial
equity interest in it, or any business combination with it (other than as
contemplated by the Plan of Merger) or withdraw its recommendation of the
Company Merger to FNB's shareholders. FNB and FNBH have also agreed that in no
event will any such information be supplied except pursuant to a confidentiality
agreement in form and substance substantially the same as the confidentiality
agreement previously executed between FNB and Whitney, that they will each
instruct their respective officers, directors, agents and affiliates to refrain
from doing any of the foregoing and that they will notify Whitney immediately if
any such inquiries or proposals are received by, any such information is
requested from or any discussions or negotiations are sought to be initiated
with, FNB, FNBH or any of their officers, directors, agents or affiliates.
Notwithstanding the foregoing, nothing contained in the Plan of Merger shall be
deemed to prohibit any officer or director of FNB or FNBH from taking any action
that in the opinion of counsel to FNB is required by law or is required to
discharge his fiduciary duties to the FNB's consolidated group and its
shareholders.
Waiver, Amendment and Termination. The Plan of Merger provides that the
parties thereto may waive any of the conditions to their respective obligations
to consummate the Company Merger other than approval by the shareholders of the
FNB or FNBH, the absence of a stop order suspending the effectiveness of the
Registration Statement of which this Proxy Statement-Prospectus forms a part,
the receipt of all necessary regulatory approvals, the satisfaction of all
requirements prescribed by law for consummation of the Company Merger, and FNB's
receipt of a letter from Robinson-Humphrey dated the date of the Meeting, in
form and substance satisfactory to FNB, confirming Robinson-Humphrey's fairness
opinion to the Board of Directors of FNB. A waiver must be in writing.
The Plan of Merger, including all related agreements, may be amended or
modified at any time, before or after approval by the shareholders of FNB, by
the mutual agreement in writing of the Boards of Directors of the parties to the
Plan of Merger; provided that, under the Louisiana Business Corporation
Law (the "LBCL"), any amendment made subsequent to shareholder approval
of the Company Merger may not alter the amount or type of shares into which the
FNB Common Stock will be converted, alter any term of the Articles of
Incorporation of Whitney as the surviving entity, or alter any term or condition
of the Plan of Merger in a manner that would adversely affect any shareholder of
FNB. Additionally, the Plan of Merger may be amended at any time by the sole
action of the chief executive officers of the respective parties to the Plan of
Merger to correct typographical errors or to change erroneous references or
cross-references, or in any other manner that is not material to the substance
of the transactions contemplated by the Plan of Merger.
The Plan of Merger may be terminated at any time prior to the Effective
Date by (i) the mutual consent of the respective Boards of Directors of Whitney
and FNB; (ii) the Board of Directors of either Whitney or FNB in the event of a
breach by any member of the consolidated group of the other of them of any
representation, warranty or covenant in the Plan of Merger that cannot be cured
by the earlier of 45 days after written notice of such breach or June 30, 1997;
(iii) the Board of Directors of either Whitney or FNB if by June 30, 1997 all
the conditions to closing required by the Plan of Merger have not been met or
waived or cannot be met, or the Company Merger has not occurred, by June 30,
1997; (iv) either party if the Plan of Merger fails to receive the
requisite vote of FNB's shareholders; (v) Whitney if FNB's Board of Directors
(A) withdraws, modifies or changes its recommendation to its shareholders
as contained
11
<PAGE>
herein or resolves to do so, (B) recommends to its shareholders any other
merger, consolidation, share exchange, business combination or other similar
transaction, any sale, lease, transfer or other disposition of all or
substantially all of the assets of any member of FNB's consolidated group or any
acquisition of 15% or more of any class of FNB's capital stock or (C) makes any
announcement of a proposal, plan or intention to do any of the foregoing; or
(vi) FNB, if FNB receives a written offer with respect to any transaction
described in (v) above and the Board of Directors of FNB determines in good
faith, after consultation with its financial advisors and counsel, that such
transaction is more favorable to FNB's shareholders than the transactions
contemplated by the Plan of Merger. The Plan of Merger provides for a
termination fee of $2,000,000 payable to Whitney if FNB terminates the Plan of
Merger under the circumstances described in clause (vi) of the preceding
sentence. The provisions in the Plan of Merger regarding confidentiality,
payment of the termination fee and certain miscellaneous matters will survive
any termination of the Plan of Merger.
Interests of Certain Persons
Employee Benefits. Whitney has agreed that, at the effective time of
the Company Merger, all persons then employed by FNB and FNBH shall be eligible
for such employee benefits as are generally available to employees of Whitney
Bank having like tenure, officer status and compensation levels, except that (a)
all executive and senior level management bonuses, stock options, restricted
stock and similar benefits will be at the discretion of Whitney Bank's
Compensation Committee, and (b) all FNB and FNBH employees who are employed at
the effective time of the Company Merger will be given full credit for all prior
service as employees of FNB or FNBH, provided, however, that all such employees
shall be treated as newly hired Whitney Bank employees for all purposes of
Whitney's or Whitney Bank's Defined Benefit Pension Plan (i.e., prior service
credit with FNB and FNBH will not be considered in determining future benefits
under Whitney's or Whitney Bank's Defined Benefit Pension Plan).
ESOP. Whitney intends to terminate FNBH's Employee Stock Ownership Plan
(the "Plan") after the Effective Date, which will cause all participants in the
Plan, including certain directors and executive officers of FNB and FNBH, to
become fully vested in their Plan interests.
Change in Control and Other Agreements. FNB and FNBH have entered into
agreements with six of their executive officers and other key employees (the
"Agreements") under which payments will be made to such persons under certain
circumstances following a change in control of FNB. One of these executive
officers is also a director of FNB and FNBH, and one is a director of FNBH only.
The Agreements provide for a lump sum payment to the employee if, within a
two-year period following a change in control of FNB, the employee's employment
with FNB or FNBH (or their successors) is terminated without Cause or the
employee terminates his employment for Good Reason. The transactions
contemplated by the Plan of Merger would constitute a change in control for
purposes of the Agreements and would trigger such employees' rights to receive
payments under the circumstances described above.
"Cause" is defined as the willful and continued failure by the employee
to perform substantially the duties and responsibilities consistent with his
position (other than any such failure resulting from the employee's incapacity
due to physical or mental illness); the employee's becoming physically or
mentally disabled so as to be unable to perform his duties on a full time basis
for a period of more than 180 consecutive business days or for more than 180
business days in any 12-month period; and, the employee's committing, being
arrested or otherwise officially charged with, a felony or any crime involving
moral turpitude or any other criminal or unethical conduct that the Board
determines would materially impair the employee's ability to perform his duties
or would materially impair the business reputation of FNB or FNBH.
"Good Reason" is defined to include, among other things, a change in
the employee's status, title or position to a status, title or position that, in
his reasonable judgment, is not the equivalent of an executive position with a
financial institution; a reduction in the employee's salary as in effect
immediately prior to the change in control other than reductions aggregating not
more than 10% of such salary in connection with an overall executive pay
reduction program; the failure by FNB or FNBH to continue to provide benefits to
the employee substantially similar to those provided to other executive
officers; the requiring of the employee to be based anywhere other than within a
35 mile radius of Houma, Louisiana; or the failure by FNB or FNBH to obtain the
assumption of the Agreements by any successor.
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<PAGE>
Under the Agreements, upon a termination for which a severance payment
is required, an amount must be paid to the employee equal to the average total
annual compensation paid by FNB, FNBH or both to the employee and reported as
gross income for 1994 and any subsequent taxable years ending before the
employee's termination (the "Base Amount"). In the case of the President and
Chief Executive Officer of FNB, such payment is equal to two times the Base
Amount.
The Agreements require assumption by Whitney in connection with the
Plan of Merger, and Whitney intends to notify FNB, no later than 30 days prior
to the Effective Date, of the Agreements that it intends to expressly assume. If
Whitney does not agree to assume an Agreement, FNB is obligated to terminate the
Agreement of that employee, in which case the employee would be entitled to the
payment described above.
Pursuant to an agreement entered into among FNB, FNBH and a former
executive officer of FNB in connection with his resignation from all executive
positions with FNB and FNBH, the former executive officer has agreed to remain
an employee of FNBH with his regular salary and benefits through the date of the
full conversion of FNBH's data processing system to that of Whitney Bank's
system, if the Company Merger is consummated, but in no event beyond November 1,
1997, whether or not the Company Merger is consummated. The agreement also
provides that, if the Company Merger is consummated, the former officer will be
paid a bonus in an amount equal to three months' base salary, payable on the
last day of the term of the agreement.
Indemnification and Insurance. Whitney has agreed that all rights to
indemnification and all limitations of liability existing in favor of
indemnified parties under FNB's Articles of Incorporation and By-Laws and in the
Articles of Incorporation and By-Laws of FNBH (as the case may be) as in effect
on October 11, 1996 with respect to matters occurring prior to or at the
effective time of the Company Merger will survive for a period concurrent with
the applicable statute of limitations. Whitney has also agreed to use its best
efforts to cause those persons serving as officers and directors of FNB and FNBH
immediately prior to the effective time of the Company Merger to be covered for
three years thereafter by the directors and officers liability insurance policy
maintained by FNB and FNBH (or a substitute policy) with respect to acts or
omissions occurring prior to or at the effective time of the Company Merger,
subject to certain conditions. In addition, Whitney has agreed to indemnify,
under certain conditions, FNB's and FNBH's directors, officers and controlling
persons against certain expenses and liabilities, including certain liabilities
arising under federal securities laws.
No director or executive officer of FNB or FNBH owns any shares of
Whitney Common Stock other than 5,024 shares beneficially owned by Hilton J.
Michel, Jr. and 200 shares beneficially owned by Peter T. Lemann. No director or
executive officer of Whitney has any personal interest in the Mergers other than
by reason of his holdings of Whitney Common Stock, nor do such directors or
executive officers own any shares of FNB Common Stock.
Status Under Federal Securities Laws; Certain Restrictions on Resales
The shares of Whitney Common Stock to be issued to shareholders of FNB
pursuant to the Plan of Merger have been registered under the Securities Act of
1933, as amended (the "Securities Act"), thereby allowing such shares to be
freely traded without restriction by persons who will not be "affiliates" (as
that term is defined in the Securities Act and the rules and regulations
thereunder) of Whitney or who were not "affiliates" of FNB.
Directors and certain officers and shareholders of FNB and FNBH may be
deemed to be "affiliates" of FNB. Such persons may resell Whitney Common Stock
received by them pursuant to the Company Merger only if the shares are
registered for resale under the Securities Act or an exemption from the
registration requirements of the Securities Act is available. All such persons
should carefully consider the limitations imposed by Rules 144 and 145
promulgated under the Securities Act prior to effecting any resales of Whitney
Common Stock. Each such affiliate has entered into an agreement not to sell
shares of Whitney Common Stock received by him or her in violation of the
Securities Act. This Proxy Statement-Prospectus does not cover resales of
Whitney Common Stock offered hereby to be received by FNB shareholders deemed to
be "affiliates" of FNB.
Further, in accordance with the requirements for using the
pooling-of-interests method of accounting, FNB shareholders who may be deemed
"affiliates" of FNB have agreed not to sell the shares of Whitney Common Stock
received by them in the Company Merger until at least 30 days of post-closing
combined earnings of Whitney and FNB
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<PAGE>
have been published by Whitney. Whitney has agreed to publish such an earnings
release as promptly as practicable following receipt of such financial results.
Accounting Treatment
It is a condition to Whitney's obligation to consummate the Company
Merger that (i) it receive certain assurances from FNB's independent public
accountants that the Mergers may be accounted for as a pooling of interests
under the requirements of Opinion No. 16 of the Accounting Principles Board of
the American Institute of Certified Public Accountants and the published rules
and regulations of the Commission for accounting and financial reporting
purposes and (ii) neither Whitney's independent public accountants nor the
Commission shall have taken the position that the transactions contemplated by
the Plan of Merger do not qualify for pooling-of-interests accounting treatment.
Under the pooling-of-interests method of accounting, after certain adjustments
necessary to conform the basis of presentation of the Whitney and FNB
information, the recorded assets and liabilities of Whitney and FNB will be
carried forward to Whitney's consolidated financial statements at their recorded
amounts, the consolidated earnings of Whitney will include earnings of Whitney
and FNB for the entire fiscal year in which the Company Merger occurs and the
reported earnings of Whitney and FNB for prior periods will be combined and
restated as consolidated earnings of Whitney. Similar treatment will be given to
any other acquisitions that are accounted for as poolings of interests and that
are consummated during the fiscal year. See "- Regulatory Approvals and Other
Conditions of the Company Merger" and "- Status Under Federal Securities Laws;
Certain Restrictions on Resales."
ABSENCE OF DISSENTER'S RIGHTS
An FNB shareholder who objects to the Company Merger does not have
"dissenter's rights" and, therefore, does not have the right to dissent from the
Company Merger and have paid to him in cash by Whitney the fair cash value of
his shares of FNB Common Stock.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the opinion of Arthur Andersen LLP that
Whitney and FNB expect to receive concerning the material federal income tax
consequences to holders of FNB Common Stock resulting from the Plan of Merger.
Consummation of the Company Merger is conditioned upon receipt by Whitney and
FNB of such opinion dated the date set for consummation of the Plan of Merger.
The following is based upon applicable federal law and judicial and
administrative interpretations on the date hereof, any of which is subject to
change at any time, and representations of management of Whitney and of FNB.
(a) Provided that shareholders of FNB receive and retain a sufficient
amount of Whitney Common Stock to satisfy requirements regarding continuity of
interest, the Mergers will qualify as reorganizations under Sections
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). FNB,
FNBH, Whitney and Whitney Bank each will be a "party to a reorganization" within
the meaning of Section 368(b) of the Code.
(b) No gain or loss will be recognized by FNB, FNBH, Whitney or Whitney
Bank as a result of the Mergers.
(c) No gain or loss will be recognized by a shareholder of FNB on the
receipt solely of Whitney Common Stock in exchange for his shares of FNB Common
Stock.
(d) The tax basis of the shares of Whitney Common Stock to be received
by FNB's shareholders pursuant to the Company Merger will be the same as the
basis of the shares of FNB Common Stock surrendered in exchange therefor,
decreased by the amount of basis allocated to any cash received in lieu of
fractional shares that are hypothetically received by the shareholder and
redeemed for cash.
(e) The holding period of the shares of Whitney Common Stock to be
received by FNB's shareholders pursuant to the Company Merger will, in each
instance, include the holding period of the respective shares of FNB Common
Stock exchanged therefor, provided that the shares of FNB Common Stock are held
as capital assets on the Effective Date.
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(f) The payment of cash to FNB's shareholders in lieu of fractional
share interests of Whitney Common Stock will be treated as if the fractional
shares were distributed as part of the exchange and then redeemed by Whitney.
These cash payments will be treated as having been received as a distribution in
redemption of that fractional share interest subject to the conditions and
limitations of Section 302 of the Code. If a fractional share of Whitney Common
Stock would constitute a capital asset in the hands of a redeeming shareholder,
any resulting gain or loss will be characterized as capital gain or loss in
accordance with the provisions and limitations of Subchapter P of Chapter 1 of
the Code.
The opinion of Arthur Andersen LLP is not binding on the Internal
Revenue Service, which could take positions contrary to the conclusions in such
opinion.
As a result of the complexity of the tax laws, and because the tax
consequences to any particular shareholder may be affected by matters not
discussed herein, it is recommended that each shareholder of FNB consult his
personal tax advisor concerning the applicable federal, state and local income
tax consequences of the Mergers.
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following unaudited pro forma condensed combined financial
information should be read in conjunction with the consolidated financial
statements and notes thereto of Whitney's consolidated group and of FNB's
consolidated group incorporated herein by reference. The pro forma information
is presented for illustrative purposes only and is not necessarily indicative of
the operating results or financial position that would have occurred if the
Company Merger had been consummated in accordance with the assumptions set forth
under "Notes to Unaudited Pro Forma Condensed Combined Financial Statements,"
nor is it necessarily indicative of future operating results or financial
position.
As discussed in the Notes to the Unaudited Pro Forma Condensed Combined
Financial Statements, Whitney Common Stock is assumed to have an Average Market
Price of $32.50 per share, which, assuming 2,017,600 shares of FNB Common Stock
outstanding on the Effective Date, would result in the issuance of 1,261,538
shares of Whitney Common Stock (an exchange ratio of 0.6253) pursuant to the
Plan of Merger. See "The Plan of Merger - Description of the Plan of
Merger -- Conversion of Common Stock."
On March 8, 1996, Whitney completed a merger with First Citizens
BancStock, Inc. ("Citizens") and its wholly-owned subsidiary, The First National
Bank in St. Mary Parish, which was accounted for as a pooling of interests;
accordingly, Whitney's financial statements have been restated to include the
operations of Citizens.
On October 25, 1996, Whitney completed mergers with Liberty Holding
Company, its majority-owned subsidiary, Liberty Bank, and American Bank and
Trust (all of Pensacola, Florida). These mergers (collectively referred to as
the "Florida acquisitions") will be accounted for as poolings of interest.
Whitney has also entered into a definitive agreement dated November 14, 1996
with Merchants Bancshares, Inc. ("Merchants") and its majority-owned subsidiary
Merchants Bank & Trust Co. ("Merchants Bank"), pursuant to which Merchants would
merge with and into Whitney, and Whitney would acquire all of the outstanding
shares of Merchants Bank through either a merger with a subsidiary of Whitney or
a share exchange with Whitney, all of which are expected to qualify for
pooling-of-interests accounting treatment. See "Information About Whitney -
General" and "Information About Whitney - Recent Developments." These
acquisitions are not considered material to Whitney for purposes of presenting
pro forma financial information; therefore, information regarding Merchants,
Merchants Bank and the Florida acquisitions is not included in the following pro
forma financial statements, and Whitney's historical financial statements have
not been restated to reflect the completed Florida acquisitions.
The unaudited pro forma condensed combined balance sheet at September
30, 1996, set forth below, gives effect to the Company Merger under the
pooling-of-interests accounting method as if the Company Merger had occurred on
September 30, 1996. The unaudited pro forma condensed combined statements of
income for the years ended December 31, 1995, 1994 and 1993 and the nine months
ended September 30, 1996 and 1995 combine the historical statements of income of
Whitney and FNB as if the Company Merger had been effective as of January 1,
1993. The cost associated with the Company Merger, estimated to be $2.1 million,
will be accounted for as a current period expense upon consummation of the
Company Merger and has not been reflected in the pro forma financial statements.
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WHITNEY HOLDING CORPORATION
PRO FORMA CONDENSED COMBINED BALANCE SHEET
(Unaudited)
September 30, 1996
(In Thousands)
<TABLE>
<C> <C> <C> <C> <C>
Whitney FNB Pro Forma Pro Forma
(Consolidated) (Consolidated) Adjustments Combined
-------------- -------------- ----------- ------------
ASSETS
Cash and due from financial institutions.......... $ 210,320 $ 8,383 $ 218,703
Interest-bearing deposits in financial institutions - 3,200 3,200
Securities available for sale..................... 124,497 64,349 188,846
Securities held to maturity....................... 1,249,120 10,874 1,259,994
Federal funds sold................................ 300 - 300
Loans and leases.................................. 1,795,725 121,212 1,916,937
Less: reserve for possible loan losses............ 43,198 1,951 45,149
----------- ---------- -----------
Net loans and leases.............................. 1,752,527 119,261 1,871,788
Bank premises and equipment (net)................. 101,575 5,195 106,770
Other real estate owned (net)..................... 2,837 956 3,793
Other assets...................................... 74,113 6,414 80,527
----------- ---------- -------- -----------
TOTAL ASSETS............................... $ 3,515,289 $ 218,632 $0 $ 3,733,921
----------- ========== ======== ===========
LIABILITIES
Deposits.......................................... $ 2,696,506 $ 192,395 $2,888,901
Federal funds purchased and other borrowings...... 404,696 6,947 411,643
Accrued expenses and other liabilities............ 29,622 1,300 30,922
----------- ---------- -----------
TOTAL LIABILITIES.......................... $ 3,130,824 $ 200,642 $3,331,466
EQUITY
Capital stock..................................... $2,800 $5,044 ($5,044) $2,800
Capital surplus................................... 67,628 16,454 5,044 89,126
Retained earnings (accumulated deficit)........... 322,305 (2,069) 320,236
Net unrealized holding gains (losses) on
available-for-sale securities................. (165) (1,439) (1,604)
Less: Treasury stock.............................. 8,103 - 8,103
----------- ---------- -----------
TOTAL EQUITY............................... $ 384,465 $ 17,990 $ 402,455
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY....................... $3,515,289 $218,632 $0 $3,733,921
=========== ========== ======== ===========
</TABLE>
See accompanying notes.
16
<PAGE>
WHITNEY HOLDING CORPORATION
PRO FORMA CONDENSED COMBINED INCOME STATEMENT
(Unaudited)
Nine Months Ended September 30, 1996
(In Thousands, except for share data)
<TABLE>
<C> <C> <C> <C> <C>
Whitney FNB Pro Forma Pro Forma
(Consolidated) (Consolidated) Adjustments Combined
-------------- -------------- ----------- ----------
Interest income................................... $ 172,907 $ 11,323 $ 184,230
Interest expense.................................. 63,613 4,869 68,482
--------- -------- ---------
Net interest income............................... 109,294 6,454 115,748
Provision for (reduction in) reserves for possible
loan losses.................................... 0 100 100
--------- -------- ---------
Net interest income after provision
for possible loan losses....................... 109,294 6,354 115,648
Non-interest income............................... 27,232 1,556 28,788
Non-interest expense.............................. 95,030 5,240 100,270
Income before income taxes........................ 41,496 2,670 44,166
Income taxes...................................... 12,984 902 13,886
--------- -------- ---------
Net income........................................ $ 28,512 $ 1,768 $ 30,280
========= ======== =========
Weighted average shares outstanding:
Primary......................................... 17,143,567 1,261,538 18,405,105
Fully diluted................................... 17,178,788 1,261,538 18,440,326
Earnings per share:
Primary......................................... $1.66 $1.40 $1.65
Fully diluted................................... $1.66 $1.40 $1.64
</TABLE>
See accompanying notes.
17
<PAGE>
WHITNEY HOLDING CORPORATION
PRO FORMA CONDENSED COMBINED INCOME STATEMENT
(Unaudited)
Nine Months Ended September 30, 1995
(In Thousands, except for share data)
<TABLE>
<C> <C> <C> <C> <C>
Whitney FNB Pro Forma Pro Forma
(Consolidated) (Consolidated) Adjustments Combined
-------------- -------------- ----------- ----------
Interest income................................... $ 156,228 $ 11,509 $ 167,737
Interest expense.................................. 52,603 4,446 57,049
--------- -------- ---------
Net interest income............................... 103,625 7,063 110,688
Provision for (reduction in) reserves for possible
loan losses.................................... (9,750) 0 (9,750)
--------- -------- ---------
Net interest income after provision
for possible loan losses....................... 113,375 7,063 120,438
Non-interest income............................... 25,083 1,377 26,460
Non-interest expense.............................. 88,620 5,905 94,525
Income before income taxes........................ 49,838 2,535 52,373
Income taxes...................................... 15,765 852 16,617
--------- -------- ---------
Net income........................................ $ 34,073 $ 1,683 $ 35,756
========= ======== =========
Weighted average shares outstanding:
Primary......................................... 16,793,048 1,261,538 18,054,586
Fully diluted................................... 16,793,048 1,261,538 18,054,586
Earnings per share:
Primary......................................... $2.02 $1.33 $1.98
Fully diluted................................... $2.02 $1.33 $1.98
</TABLE>
See accompanying notes.
18
<PAGE>
WHITNEY HOLDING CORPORATION
PRO FORMA CONDENSED COMBINED INCOME STATEMENT
(Unaudited)
Year Ended December 31, 1995
(In Thousands, except for share data)
<TABLE>
<C> <C> <C> <C> <C>
Whitney FNB Pro Forma Pro Forma
(Consolidated) (Consolidated) Adjustments Combined
-------------- -------------- ----------- ----------
Interest income................................... $ 213,295 $ 15,327 $ 228,622
Interest expense.................................. 71,867 6,110 77,977
--------- -------- ---------
Net interest income............................... 141,428 9,217 150,645
Provision for (reduction in) reserves for possible
loan losses..................................... (9,400) 0 (9,400)
--------- -------- ---------
Net interest income after provision
for possible loan losses....................... 150,828 9,217 160,045
Non-interest income............................... 33,205 1,793 34,998
Non-interest expense.............................. 119,481 7,404 126,885
Income before income taxes........................ 64,552 3,606 68,158
Income taxes...................................... 20,203 1,213 21,416
--------- -------- ---------
Net income........................................ $ 44,349 $ 2,393 $ 46,742
========= ======== =========
Weighted average shares outstanding:
Primary......................................... 16,971,801 1,261,538 18,233,339
Fully diluted................................... 17,049,308 1,261,538 18,310,846
Earnings per share:
Primary......................................... $2.61 $1.90 $2.56
Fully diluted................................... $2.60 $1.90 $2.55
</TABLE>
See accompanying notes.
19
<PAGE>
WHITNEY HOLDING CORPORATION
PRO FORMA CONDENSED COMBINED INCOME STATEMENT
(Unaudited)
Year Ended December 31, 1994
(In Thousands, except for share data)
<TABLE>
<C> <C> <C> <C> <C>
Whitney FNB Pro Forma Pro Forma
(Consolidated) (Consolidated) Adjustments Combined
-------------- -------------- ----------- ----------
Interest income................................... $ 192,750 $ 13,257 $ 206,007
Interest expense.................................. 57,503 4,773 62,276
--------- -------- ---------
Net interest income............................... 135,247 8,484 143,731
Provision for (reduction in) reserves for possible
loan losses..................................... (26,004) (500) (26,504)
--------- -------- ---------
Net interest income after provision
for possible loan losses....................... 161,251 8,984 170,235
Non-interest income............................... 34,175 676 34,851
Non-interest expense.............................. 112,394 7,759 120,153
Income before income taxes........................ 83,032 1,901 84,933
Income tax expense (benefit)...................... 26,834 (3,979) 22,855
--------- -------- ---------
Net income........................................ $ 56,198 $ 5,880 $ 62,078
========= ======== =========
Weighted average shares outstanding:
Primary......................................... 16,588,783 1,261,538 17,850,321
Fully diluted................................... 16,588,783 1,261,538 17,850,321
Earnings per share:
Primary......................................... $3.39 $4.66 $3.48
Fully diluted................................... $3.39 $4.66 $3.48
</TABLE>
See accompanying notes.
20
<PAGE>
WHITNEY HOLDING CORPORATION
PRO FORMA CONDENSED COMBINED INCOME STATEMENT
(Unaudited)
Year Ended December 31, 1993
(In Thousands, except for share data)
<TABLE>
<C> <C> <C> <C> <C>
Whitney FNB Pro Forma Pro Forma
(Consolidated) (Consolidated) Adjustments Combined
-------------- -------------- ----------- ---------
Interest income................................... $ 186,105 $ 12,322 $ 198,427
Interest expense.................................. 54,681 4,785 59,466
--------- -------- ---------
Net interest income............................... 131,424 7,537 138,961
Provision for (reduction in) reserves for possible
loan losses..................................... (59,625) 51 (59,574)
--------- -------- ---------
Net interest income after provision
for possible loan losses....................... 191,049 7,486 198,535
Non-interest income............................... 33,216 1,563 34,779
Non-interest expense.............................. 108,237 7,512 115,749
Income before income taxes and cumulative
effect of changes in accounting principles...... 116,028 1,537 117,565
Income tax expense (benefit)...................... 37,145 (241) 36,904
--------- -------- ---------
Income before cumulative effect of changes
in accounting principles........................ 78,883 1,778 80,661
Cumulative effect of changes in accounting
principles...................................... 345 340 685
--------- -------- ---------
Net income........................................ $ 79,228 $ 2,118 $ 81,346
========= ======== =========
Weighted average shares outstanding:
Primary......................................... 16,456,782 1,261,538 17,718,320
Fully diluted................................... 16,456,782 1,261,538 17,718,320
Earnings per share:
Primary......................................... $4.81 $1.68 $4.59
Fully diluted................................... $4.81 $1.68 $4.59
</TABLE>
See accompanying notes.
21
<PAGE>
WHITNEY HOLDING CORPORATION
NOTES TO PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
(Unaudited)
To calculate pro forma information, it has been assumed that the number
of outstanding shares of Whitney Common Stock includes shares to be issued upon
consummation of the Company Merger. In connection with the Company Merger,
Whitney will issue shares of Whitney Common Stock to the shareholders of FNB.
Under the terms of the Plan of Merger, Whitney will issue Whitney
Common Stock with an aggregate value at the date of the Company Merger of
approximately $41,000,000 (calculated based on the Average Market Price). The
number of shares of Whitney Common Stock to be exchanged in the Company Merger
will be determined by the Average Market Price of Whitney Common Stock, which
will be no less than $28.50 per share nor more than $36.50 per share. For
purposes of the accompanying pro forma financial statements, the Whitney Common
Stock is assumed to have an Average Market Price in the Company Merger of $32.50
per share, resulting in the issuance of 1,261,538 shares of Whitney Common Stock
for all the common stock of FNB (an exchange ratio of 0.6253).
The historical earnings per share and weighted average shares
outstanding amounts for FNB reflect the equivalent shares of Whitney Common
Stock expected to be exchanged in connection with the Mergers based on an
assumed Average Market Price of $32.50 per share of Whitney Common Stock.
There is no stated par value of Whitney Common Stock. In accordance
with the pooling-of-interests method of accounting, the historical equities of
the merged companies are combined.
22
<PAGE>
INFORMATION ABOUT FNB
Description of Business
FNB is a Louisiana corporation and a registered bank holding company
under the Bank Holding Company Act of 1956 (the "BHCA"). FNB was incorporated in
1974 and acquired all of the stock of FNBH in July 1982 pursuant to a
reorganization in which the shareholders of FNBH became shareholders of FNB and
FNBH became FNB's wholly-owned subsidiary. At September 30, 1996, FNB had total
consolidated assets of approximately $218.6 million and total consolidated
deposits of approximately $192.4 million. FNB's principal executive office is
located at 7910 Main Street, Houma, Louisiana 70360, and its telephone number is
(504) 868-1660.
Additional information with respect to FNB is included in documents
incorporated by reference in this Proxy Statement-Prospectus. Copies of certain
of such documents, consisting of FNB's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, and Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996, accompany this Proxy Statement-Prospectus.
Price Range of FNB Common Stock and Quarterly Dividends
Since April 19, 1995, the FNB Common Stock has been traded on the AMEX
under the symbol FNH. The following table sets forth the high and low reported
closing sale prices per share of FNB Common Stock as reported on the AMEX (for
the second quarter of 1995 and subsequent periods) and the quarterly dividends
declared for the periods indicated. Prices indicated for the FNB Common Stock
through the first quarter of 1995 are based upon actual transactions in FNB
Common Stock of which FNB's management is aware; however, during that period
there were only a limited number of transactions, all of which involved limited
numbers of shares, and no assurance can be given that the prices indicated
represent actual market values.
High Low Dividend
1994
First Quarter................ $3.37 $3.25 $ -
Second Quarter............... 4.37 3.75 -
Third Quarter................ 4.50 4.00 -
Fourth Quarter............... 4.50 4.13 .10
1995
First Quarter................ $5.00 $4.50 $ -
Second Quarter............... 9.50 7.00 .05
Third Quarter................ 13.875 9.0625 .05
Fourth Quarter............... 16.75 14.00 .06
1996
First Quarter ............... $14.875 $13.75 $ .07
Second Quarter............... 13.875 13.00 .07
Third Quarter................ 19.50 13.75 .07
Fourth Quarter.............. 20.25 15.75 .07
23
<PAGE>
INFORMATION ABOUT WHITNEY
General
Whitney, a Louisiana corporation, is a multi-bank holding company
registered pursuant to the BHCA. It became an operating entity in 1962 with
Whitney Bank as its only significant subsidiary. Whitney Bank, a national
banking association headquartered in Orleans Parish, Louisiana, has been engaged
in the general banking business in the City of New Orleans continuously since
1883. Whitney Bank currently offers banking and trust services through 61
branches located in south Louisiana, including branches in the metropolitan
areas of New Orleans (including suburban Jefferson and St. Tammany Parishes),
Baton Rouge, Lafayette and Morgan City, and a foreign branch on Grand Cayman in
the British West Indies. In December 1994, Whitney established the Whitney Bank
of Alabama, and through this new, Alabama state-chartered banking subsidiary,
became the first Louisiana bank holding company to enter the Alabama market
through its acquisition of the Mobile area operations of The Peoples Bank, Elba,
Alabama on February 17, 1995. Whitney Bank of Alabama currently operates 10
branches and one loan production office serving metropolitan Mobile and
Montgomery, Alabama and the Alabama Gulf Coast region.
On October 25, 1996, Whitney acquired Liberty Bank and American Bank
and Trust, both of Pensacola, Florida, through mergers of those institutions
into Whitney National Bank of Florida ("Whitney Bank-Florida"), a wholly-owned
subsidiary of Whitney formed for that purpose. Whitney Bank-Florida operates
five branches serving Pensacola, Florida and surrounding areas.
Whitney Bank, Whitney Bank of Alabama and Whitney Bank-Florida
(Whitney's banking subsidiaries) are full-service commercial banks engaged 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 delivery of corporate, pension and personal trust and
investment services and safe deposit rentals. Whitney Bank also issues credit
cards and is active as a correspondent for other banks.
During 1995, Whitney established Whitney Community Development
Corporation ("WCDC"), a for-profit community development corporation
incorporated under the laws of the State of Louisiana. WCDC is authorized to
make equity and debt investments in corporations or projects designed primarily
to promote community welfare, including the economic rehabilitation and
development of low-income areas by providing housing, services or jobs for
residents, or promoting small businesses that service low-income areas. The
initial capitalization of WCDC was $1,000,000.
At September 30, 1996, Whitney had consolidated total assets of
approximately $3.5 billion, consolidated total deposits of approximately $2.7
billion and consolidated shareholders' equity of approximately $384 million.
Whitney's and Whitney Bank's principal executive offices are located at 228 St.
Charles Avenue, New Orleans, Louisiana 70130, and its telephone number is (504)
586-7117.
Recent Developments
Whitney has entered into a definitive agreement dated November 14, 1996
with Merchants Bancshares, Inc. ("Merchants") and its majority-owned subsidiary
Merchants Bank & Trust Co. ("Merchants Bank"), pursuant to which Merchants would
merge with and into Whitney, and Whitney would acquire all of the outstanding
shares of Merchants Bank through either a merger with a subsidiary of Whitney or
a share exchange with Whitney (the "Merchants Acquisition"). Merchants Bank is a
Mississippi state-chartered bank headquartered in Gulfport, Mississippi, with
approximately $207 million in assets and 13 branches serving the Mississippi
Gulf Coast.
Under the terms of the Merchants agreement, shareholders of Merchants
and the minority shareholders of Merchants Bank would receive, in the aggregate,
shares of Whitney Common Stock having a value of approximately $51.8 million
(plus the amount of Merchants' retained net income after tax from October 1,
1996 through the month preceding the closing of that transaction), based on an
assumed average market price of Whitney Common Stock between $30.00 and $36.00
per share. As in the Company Merger, the actual value on the effective date of
the Merchants Acquisition of the shares of Whitney Common Stock to be received
by Merchants shareholders may be more or less than the amount described above
inasmuch as such consideration will be determined in reference to a defined
24
<PAGE>
"average market price" of Whitney Common Stock that can be no less than $30.00
or more than $36.00. The Merchants Acquisition is expected to be consummated in
the first quarter of 1997, but is subject to regulatory approval and other
customary conditions. There can be no assurance that the Merchants Acquisition
will be consummated at such time or at all.
Whitney continues to explore opportunities to acquire additional
financial institutions as part of an expansion strategy that focuses on
developing a significant banking presence along the United States Gulf Coast
from the Texas-Louisiana border through the Florida panhandle. Discussions are
continually being carried on relating to such potential acquisitions. Whitney
may, after the date of this Proxy Statement-Prospectus, enter into one or more
acquisition agreements with one or more of such institutions; however, it is not
currently known whether Whitney's discussions will result in further
acquisitions or on what terms any such acquisitions would be made.
Market Prices of and Dividends Declared on Whitney Common Stock
Whitney Common Stock is included for quotation in the NASDAQ National
Market System under the symbol "WTNY." The following table sets forth, for the
periods indicated the high and low reported closing sale prices per share of
Whitney Common Stock as reported on the NASDAQ National Market System and the
quarterly dividends declared for each such period.
Price Range of Common Stock and Quarterly Dividends
High Low Dividend*
1994
First Quarter................ $24 $21 1/2 $0.14
Second Quarter............... 27 1/4 21 3/4 0.14
Third Quarter................ 28 1/2 25 3/4 0.15
Fourth Quarter............... 27 21 0.17
1995
First Quarter................ $25 3/4 $22 $0.18
Second Quarter............... 27 3/8 24 0.19
Third Quarter................ 34 26 3/4 0.19
Fourth Quarter............... 31 1/2 29 3/4 0.21
1996
First Quarter ............... $31 3/4 $29 3/4 $0.22
Second Quarter............... 31 3/4 29 3/4 0.25
Third Quarter................ 30 7/8 29 1/2 0.25
Fourth Quarter........... 35 7/8 31 3/4 0.25
- ----------------------
* Dividends per share for 1994 and 1995 have been restated to reflect the
Citizens Acquisition. See "Summary - Selected Financial Data of Whitney."
COMPARATIVE RIGHTS OF SHAREHOLDERS
If the shareholders of FNB approve the Plan of Merger and the Company
Merger is subsequently consummated, all shareholders of FNB will become
shareholders of Whitney, and their rights will be governed by and be subject to
the Articles of Incorporation and Bylaws of Whitney rather than the Articles of
Incorporation and Bylaws of FNB. The following is a description of the Whitney
Common Stock and a brief summary of certain of the principal differences between
the rights of shareholders of Whitney and FNB not described elsewhere herein.
25
<PAGE>
Description of Whitney Common Stock
The authorized capital stock of Whitney consists of 40,000,000 shares
of Common Stock, no par value, of which 17,957,051 were outstanding on December
31, 1996. The following description of Whitney's capital stock is qualified in
its entirety by reference to Whitney's Articles of Incorporation and Bylaws and
to the applicable provisions of 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 quorum requirement for such a meeting is 90% of the total
voting power of Whitney present in person or by proxy.
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.
The Articles of Incorporation and Bylaws authorize Whitney to maintain
insurance covering the actions of its officers, directors, employees and agents,
and its Bylaws provide for indemnification to the fullest extent allowed under
the LBCL.
No amendment to Whitney's Articles may change 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).
26
<PAGE>
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 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.
(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 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 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.
27
<PAGE>
(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 Exchange Act 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 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 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
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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, 1996, directors and
executive officers of Whitney beneficially owned approximately 1,378,850
shares (approximately 7.7%) 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 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. See " -- Directors"
and " -- Supermajority and Fair Price Provisions," above.
Amendment of Bylaws
Whitney's Bylaws 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.
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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
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.
Comparison of Whitney Common Stock and FNB Common Stock
The following comparison of the rights of holders of Whitney Common
Stock and FNB Common Stock is based on current terms of the governing documents
of the respective companies and on the current provisions of the LBCL. The
rights of holders of FNB Common Stock and holders of Whitney Common Stock are
similar in many respects: (i) each shareholder is entitled to one vote for each
share held on all matters submitted to a vote of shareholders and neither is
entitled to cumulative voting rights in connection with the election of
directors; and (ii) each shareholder is entitled to receive pro rata any assets
distributed to the shareholders upon liquidation, dissolution or a winding up of
the affairs of their respective companies. In addition, both the Whitney Common
Stock and the FNB Common Stock are governed by applicable provisions of the
LBCL. Although it is impracticable to note all the differences between the
applicable governing documents of Whitney and FNB, the following is intended to
be a summary of certain significant differences between the rights of holders of
Whitney Common Stock and the rights of holders of FNB Common Stock.
Boards of Directors. Whitney's Articles of Incorporation provide for a
board of directors consisting of not less than five nor more than 25 members
divided into five classes, with directors serving five-year staggered terms
expiring for each class of directors at successive annual meetings of
shareholders. The Articles of Incorporation of FNB do not provide for classes of
directors, and the directors of FNB each serve one-year terms. FNB's board
consists of not less than three nor more than 25 members. The directors of both
Whitney and FNB must also be shareholders.
Removal of Directors. Whitney's Articles of Incorporation provide that
a director may be removed from office, with or without cause, only by the
affirmative vote of 90% of the voting power present at a special meeting of
shareholders called for that purpose at which a "quorum" is present. A "quorum"
for these purposes means the presence, in person or by proxy, of the holders of
90% of the total voting power of Whitney.
FNB's Articles of Incorporation and Bylaws do not contain a similar
provision and, under the LBCL, FNB's directors may be removed by the affirmative
vote of a majority of the total voting power of FNB at a special meeting of
shareholders called for that purpose.
Preferred Stock. The Board of Directors of FNB is authorized, without
action of its shareholders, to issue FNB preferred stock (the "FNB Preferred
Stock") from time to time and to fix the preferences, limitations and relative
rights thereof, as well as to establish and fix variations in the relative
rights as between holders of any one or more series of such FNB Preferred Stock.
Shares of FNB Preferred Stock that are authorized would be available for
issuance in connection with the acquisition of other businesses, infusion of
capital, or for other lawful corporate purposes, at the discretion of the Board
of Directors. The Board of Directors could issue FNB Preferred Stock to a person
or persons who would support management in connection with a proxy contest to
replace an incumbent director or in opposition to an unsolicited tender offer.
As a result, such proposals or tender offers could be defeated even though
favored by
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the holders of a majority of the FNB Common Stock. FNB's Articles of
Incorporation authorize the issuance of 2,000,000 shares of FNB Preferred Stock,
none of which are currently outstanding.
Whitney's Articles of Incorporation do not authorize the issuance of
preferred stock.
Special Meetings of Shareholders. Under the LBCL, special meetings of
Whitney's shareholders may be called by the president or the board of directors,
or upon the written request of any shareholder or shareholders holding in the
aggregate one-fifth of the total voting power of Whitney. FNB's bylaws provide
that special meetings of its shareholders may be called by the president, the
chairman of the board or the board of directors, or upon the written request of
any shareholder or shareholders holding in the aggregate one-third of the total
voting power.
Supermajority Vote Requirements. Whitney's Articles of Incorporation
contain supermajority shareholder voting provisions for certain "business
combinations." Whitney's provisions are triggered if any shareholder or group of
shareholders acquires 10% of the total voting power of Whitney, and the
supermajority vote that may be required to approve such a "business combination"
or to amend these provisions in Whitney's Articles of Incorporation is 90% of
the total voting power of Whitney.
FNB's Articles of Incorporation do not contain supermajority vote
requirements for business combinations, and FNB, therefore, is governed in this
regard solely by the LBCL. Under the LBCL, certain "business combinations"
require supermajority votes if they involve an "interested shareholder." An
"interested shareholder" is defined in the LBCL as any person that, subject to
certain exceptions, is either the beneficial owner of 10% or more of the voting
power of the outstanding voting stock of the corporation or an affiliate of the
corporation who, at any time within the two-year period immediately prior to the
date in question, was the beneficial owner of 10% more of such voting power. The
supermajority vote required by the LBCL is a vote of both (a) 80% of the votes
entitled to be cast by outstanding shares of voting stock of the corporation
voting together as a single voting group and (b) two-thirds of the votes
entitled to be cast by holders of stock other than voting stock held by the
"interested shareholder" who is or whose affiliate is a party to the "business
combination" or an affiliate or associate of the "interested shareholder,"
voting together as a single group. In addition, the "business combination" must
be recommended by the board of directors of the corporation. See " - Description
of Whitney Common Stock -- Supermajority and Fair Price Provisions --- Purposes
and Effect of Supermajority and Fair Price Provisions" and " -- Louisiana
Control Share Acquisition Statute," above.
Reversion. FNB's Articles of Incorporation provide that all cash,
property or share dividends, shares issuable in connection with the
reclassification of stock, and the redemption price of redeemed shares, which
are not claimed by the shareholders entitled thereto within 18 months after the
dividend or redemption price become payable, or the shares become issuable,
despite reasonable efforts by the corporation to pay the dividend or redemption
price, or deliver the certificates for the shares to such shareholders within
such time, shall revert in full ownership to FNB, and FNB's obligation to pay
such dividend or redemption price or issue such shares shall thereupon cease;
provided, however, the Board of Directors may, but is not required to,
thereafter pay such dividends or redemption price or issue such shares to the
person entitled thereto.
Whitney's Articles of Incorporation do not contain a similar provision.
Indemnification Rights. Whitney's Articles of Incorporation provide
that, in addition to any rights to indemnification that a person might have by
law or otherwise, Whitney shall indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding, including any
action by or in the right of Whitney, by reason of the fact that he is or was a
director, officer, employee or agent of Whitney, or is or was serving at the
request of Whitney as a director, officer, employee or agent of another business
or enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding, if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of Whitney and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. In the case of actions
by or in the right of Whitney, the indemnification provided to employees or
agents is limited to expenses not exceeding, in the judgment of the Board of
Directors, the estimated expense of litigating the action to conclusion, but the
Board of Directors is authorized in its discretion to pay or provide additional
indemnity in particular cases and, as to directors and officers, the indemnity
in such cases is similarly limited if it would permit indemnification of an
individual for (i) the results of his willful or
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intentional misconduct, (ii) breach of duty of loyalty to Whitney or the entity
otherwise served by the individual or (iii) engaging in a transaction in which
the individual derived an improper personal benefit. No indemnification may be
made in respect of a claim in which the person seeking indemnity shall have been
adjudged by a court of competent jurisdiction to be liable for willful or
intentional misconduct in the performance of its duties to Whitney unless and
only to the extent that the court shall determine upon application that, despite
the adjudication of liability but in view of all of the circumstances of the
case, he is fairly and reasonably entitled to indemnity for such expenses that
the court shall deem proper.
FNB's Articles of Incorporation provide mandatory indemnification to
its directors and officers for similar claims, except only as may be prohibited
by law. There is no requirement in such Articles of Incorporation that the
director or officer have met a certain standard of conduct, and no express
rights to indemnification for employees or agents of FNB.
LEGAL MATTERS
Milling, Benson, Woodward, Hillyer, Pierson & Miller, L.L.P., New
Orleans, Louisiana, has rendered its opinion that the shares of Whitney Common
Stock to be issued in connection with the Company Merger have been duly
authorized and, if and when issued pursuant to the terms of the Plan of Merger,
will be validly issued, fully paid and non-assessable.
EXPERTS
The consolidated financial statements of FNB and its subsidiaries at
December 31, 1995 and 1994, and for each of the three years in the period ended
December 31, 1995, incorporated in this Proxy Statement-Prospectus by reference
from FNB's Annual Report on Form 10-K for the year ended December 31, 1995, have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
The consolidated financial statements of Whitney and its subsidiaries
as of December 31, 1995 and 1994 and for each of the three years in the period
ended December 31, 1995 incorporated by reference in this Proxy
Statement-Prospectus have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report with respect thereto and have
been so incorporated by reference in reliance upon the authority of such firm as
experts in accounting and auditing in giving such report.
SHAREHOLDER PROPOSALS
If the Company Merger is not consummated, shareholder proposals of FNB
shareholders intended to be presented at the next annual meeting of shareholders
of FNB must be received by FNB at its principal executive offices a reasonable
time before the date of FNB's proxy statement released to its shareholders for
that meeting for consideration by FNB for possible inclusion in such proxy
materials.
OTHER MATTERS
At the time of the preparation of this Proxy Statement-Prospectus, FNB
had not been informed of any matters to be presented by or on behalf of FNB or
its management for action at the Meeting other than those listed in the Notice
of Special Meeting of Shareholders and referred to herein. If any other matters
properly come before the Meeting or any adjournments or postponements thereof,
the persons named in the enclosed proxy will vote on such matters according to
their best judgment.
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Shareholders are urged to sign the enclosed proxy, which is solicited
on behalf of the Board of Directors of FNB, and return it at once in the
enclosed envelope.
BY ORDER OF THE BOARD OF DIRECTORS OF FNB
Sharon T. Roppolo
Secretary
January 17, 1997
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APPENDIX A
Agreement and Plan of Merger
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made October 11,
1996, between Whitney Holding Corporation ("Whitney"), a Louisiana corporation
and Whitney National Bank ("Whitney's Bank"), a national banking association, on
the one hand, and First National Bankshares, Inc. ("Holding"), a Louisiana
corporation, and First National Bank of Houma ("Bank"), a national banking
association, on the other hand. Whitney and Holding shall be hereinafter
collectively referred to as the "Constituent Corporations".
Preamble
WHEREAS, the boards of directors of Whitney and Holding have determined
that it is desirable and in the best interests of their respective corporations
and shareholders that Holding merge into Whitney (the "Company Merger"). The
boards of directors of Whitney's Bank and Bank have each determined that it is
desirable and in the best interests of each such institution and its sole
shareholder that Bank merge into Whitney's Bank (the "Bank Merger"). The Company
Merger and the Bank Merger shall be hereinafter collectively referred to as the
"Mergers"; and
NOW THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties hereto agree as follows:
Section 1. The Mergers and Closing
1.01. Mergers.
(a) Promptly after execution of this Agreement, the Boards of
Directors of Whitney and Holding will execute the merger agreement annexed
hereto as Exhibit 1.01(a) (the "Company Merger Agreement"), pursuant to which,
on the terms set forth herein and subject to the conditions set forth in Section
6 hereof, Holding will merge with and into Whitney, which shall be the surviving
corporation.
(b) Promptly after execution of this Agreement, the Boards of
Directors of Whitney's Bank and Bank will execute the merger agreement annexed
hereto as Exhibit 1.01(b) (the "Bank Merger Agreement"), pursuant to which, on
the terms set forth herein and subject to the conditions set forth in Section 6
hereof, Bank will merge with and into Whitney's Bank, which shall be the
surviving bank. The Company Merger Agreement and the Bank Merger Agreement shall
be hereinafter collectively referred to as the "Merger Agreements".
(c) Effects of Mergers. The Company Merger shall have the
effects set forth in the Louisiana Business Corporation Law ("LBCL"). Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all the property and assets, rights, privileges and all debts, liabilities
and obligations of Holding will become the property and assets, rights,
privileges and debts, liabilities and obligations of Whitney as the surviving
corporation in the Company Merger. The Bank Merger shall have the effects set
forth in the National Banking Laws. Without limiting the generality of the
foregoing, and subject thereto, at the effective time of the Bank Merger, all
the property and assets, rights, privileges and all debts, liabilities and
obligations of Bank will become the property and assets, rights, privileges and
debts, liabilities and obligations of Whitney's Bank as the surviving
association in the Bank Merger.
1.02. The Closing. The "Closing" of the transactions contemplated
hereby will take place in the Board Room of Whitney, 228 St. Charles Avenue,
Second Floor, New Orleans, Louisiana 70130 (or such other place to which the
parties may agree), at 10:00 a.m., New Orleans Time, on a mutually agreeable
date as soon as practicable following satisfaction of the conditions set forth
in subparagraphs (a), (b) and (d) of subsection 6.01 hereof, or if no date has
been agreed to, on any date specified by any party to the others upon 10 days
notice following satisfaction of such conditions. The date on which the Closing
occurs is herein called the "Closing Date". If all conditions set
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forth in Section 6 hereof are satisfied or waived by the party entitled to grant
such waiver, at the Closing (a) the Constituent Corporations shall each provide
to the other such proof of satisfaction of the conditions set forth in Section 6
as the party whose obligations are conditioned upon such satisfaction may
reasonably request, (b) the certificates, letters and opinions required by
Section 6 shall be delivered, (c) the appropriate officers of the parties shall
execute, deliver and acknowledge the Merger Agreements and (d) the parties shall
take such further action as is required to consummate the transactions
contemplated by this Agreement and the Merger Agreements; provided, however,
that Whitney may, in its sole discretion, delay execution, delivery,
acknowledgment and filing of the Bank Merger Agreement and the consummation of
the Bank Merger until such time as it deems appropriate, but in no event later
than one year following the approval of the Bank Merger by the Office of the
Comptroller of the Currency. If on any date established for the Closing all
conditions in Section 6 hereof have not been satisfied or waived by the party
entitled to grant such waiver, then such party, on one or more occasions, may
declare a delay of the Closing of such duration, not exceeding 10 business days,
as the declaring party shall select, but no such delay shall extend beyond the
date set forth in subparagraph (c) of subsection 7.01, and no such delay shall
interfere with the right of any party to terminate this Agreement pursuant to
Section 7.
1.03. The Effective Date and Time. Immediately following (or
concurrently with) the Closing, the Company Merger Agreement shall be filed with
and recorded by the Secretary of State of Louisiana, and subject to Section
1.02, the Bank Merger Agreement will be filed and recorded with the Office of
the Comptroller of the Currency, and the Company Merger and the Bank Merger
shall be effective at the date and time specified in the Company Merger
Agreement and the Bank Merger Agreement, respectively. The date on which and the
time at which the Company Merger becomes effective are herein referred to as the
"Effective Date" and the "Effective Time," respectively.
1.04. Surviving Corporations.
(a) Company Merger. The Articles of Incorporation and bylaws
of Whitney, as in effect immediately prior to the Effective Time, shall remain
unchanged by reason of the Company Merger and shall be the Articles of
Incorporation and bylaws of Whitney as the surviving corporation in the Company
Merger. The directors and officers of Whitney at the Effective Time shall be the
directors and officers of Whitney as the surviving corporation in the Company
Merger until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be. Each
share of Whitney Common Stock, no par value ("Whitney Common Stock"), issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding from and after the Effective Time. At the Effective Time, the shares
of Holding Common Stock shall be converted as set forth in Section 2.
(b) Bank Merger. The Articles of Association and Bylaws of
Whitney's Bank, as in effect immediately prior to the effective time of the Bank
Merger shall remain unchanged by reason of the Bank Merger and shall be the
Articles of Association and Bylaws of Whitney's Bank as the surviving entity in
the Bank Merger. The directors and officers of Whitney's Bank at the effective
time of the Bank Merger shall be the directors and officers of Whitney's Bank as
the surviving corporation in the Bank Merger until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be. At the effective time of the Bank Merger and by
virtue thereof, (i) all shares of capital stock of Bank, other than any such
shares as to which dissenters' rights shall exist, shall be cancelled and (ii)
the shares of capital stock of Whitney's Bank as the surviving entity in the
Bank Merger, issued and outstanding immediately prior to such effective time
shall continue to be issued and outstanding, and no additional shares shall be
issued as a result of the Bank Merger.
1.05. Tax Consequences. It is the intention of the parties hereto that
the Mergers shall constitute a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and that
this Agreement shall constitute a "plan of reorganization" for purposes of
Section 368 of the Code.
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Section 2. Conversion of Stock in the Company Merger
2.01. Conversion. Subject to the provisions of this Section 2, at the
Effective Time, by virtue of the Company Merger and without any action on the
part of the holders thereof, the shares of Holding common stock, par value $2.50
per share ("Holding Common Stock") shall be converted as follows:
(a) Exchange Ratio. Except for shares of Holding Common Stock
held by Holding as treasury shares (which shall by reason of the Company Merger
be cancelled), and subject to the provisions of Section 2.01(b) relating to
fractional shares, each issued and outstanding share of Holding Common Stock
shall be converted into and become that number of shares of Whitney Common Stock
that is equal to the quotient (the "Exchange Ratio") obtained by dividing the
Maximum Deliverable Amount (as hereinafter defined) by the total number of
issued and outstanding shares (not treasury shares) of Holding Common Stock at
the Effective Time.
(i) Maximum Deliverable Amount. The term "Maximum
Deliverable Amount" means the quotient obtained by dividing $41,000,000 by the
Average Market Price (as defined below).
(ii) Average Market Price. The "Average Market
Price" shall be the average of the closing per share trading prices of Whitney
Common Stock (adjusted appropriately for any stock split, stock dividend,
recapitalization, reclassification or similar transaction which is effected, or
for which a record date occurs) on the twenty (20) trading days preceding the
fifth trading day immediately prior to the Effective Time, as reported in
the Wall Street Journal (corrected for typographical errors); provided,
however, that if the Average Market Price as calculated above is less than
$28.50, the Average Market Price for purposes of this Section 2.01(a) shall be
$28.50, and if the Average Market Price as calculated above is greater than
$36.50, the Average Market Price for purposes of this Section 2.01(a) shall be
$36.50.
(b) Fractional Shares. In lieu of the issuance of fractional
shares of Whitney Common Stock, each shareholder of Holding, upon surrender of
his or her certificate that immediately prior to the Effective Time represented
Holding Common Stock, other than shares of Holding Common Stock held by Holding
as treasury shares (which shall by reason of the Company Merger be cancelled),
shall receive a cash payment (without interest) equal to the fair market value
at the Effective Time of any fraction of a share of Whitney Common Stock to
which such holder would be entitled but for this provision. For purposes of
calculating such payment, the fair market value of a fraction of a share of
Whitney Common Stock at the Effective Time shall be such fraction multiplied by
the Average Market Price.
(c) Exchange of Certificates. After the Effective Time, each
holder of an outstanding certificate or certificates theretofore representing a
share or shares of Holding Common Stock, other than shares of Holding Common
Stock held by Holding as treasury shares (which shall by reason of the Company
Merger be cancelled), upon surrender thereof to the exchange agent selected by
Whitney (the "Exchange Agent"), together with duly executed transmittal
materials provided pursuant to Section 2.01(e) or upon compliance by the holder
or holders thereof with the procedures of the Exchange Agent with respect to
lost, stolen or destroyed certificates, shall be entitled to receive in exchange
therefor any payment due in lieu of fractional shares and a certificate or
certificates representing the number of whole shares of Whitney Common Stock
into which such holder's shares of Holding Common Stock were converted. Until so
surrendered, each outstanding Holding stock certificate shall be deemed for all
purposes, other than as provided below with respect to the payment of dividends
or other distributions (if any) in respect of Whitney Common Stock, to represent
the number of whole shares of Whitney Common Stock into which such holder's
Holding Common Stock shall have been converted. Whitney may, at its option,
refuse to pay any dividend or other distribution to holders of unsurrendered
Holding stock certificates until surrendered; provided, however, that upon the
surrender and exchange of any Holding stock certificates there shall be paid, to
the extent not previously paid, to the record holders of the Whitney stock
certificates issued in exchange therefor the amount, without interest, of
accumulated dividends and distributions, if any, which have become payable with
respect to the number of whole shares of Whitney Common Stock into which the
shares of Holding Common Stock theretofore represented
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by such certificates shall have been exchanged. The provisions of this
subsection 2.01(c) are intended for the benefit of the holders of shares of
Holding Common Stock and shall be enforceable by such holders and each such
holder's heirs, representatives and successors.
(d) Deposit. Promptly following the Effective Time, Whitney
shall deposit or cause to be deposited with the Exchange Agent (i) certificates
representing the shares of Whitney Common Stock and (ii) the cash in lieu of
fractional shares to be issued and paid, as the case may be, in exchange for
outstanding shares of Holding Common Stock pursuant to this Section 2.
(e) Transmittal Materials. Promptly after the Effective Time,
Whitney shall send or cause to be sent to each former shareholder of record of
Holding at the Effective Time transmittal materials for use in exchanging
certificates of Holding Common Stock for certificates of Whitney Common Stock.
2.02. Closing Transfer Books. At the Effective Time, the stock transfer
books of Holding shall be closed and no transfer of shares of Holding Common
Stock shall be made thereafter. At the effective time of the Bank Merger, the
stock transfer books of Bank shall be closed and no transfer of shares of Bank
Common Stock (as hereinafter defined in Section 3.02) shall be made thereafter.
All shares of Whitney Common Stock issued, and any fractional share payments
paid upon surrender for exchange of certificates representing shares of Holding
Common Stock in accordance with this Section 2 shall be deemed to have been
issued in full satisfaction of all rights pertaining to the shares of Holding
Common Stock theretofore represented by such certificates.
Section 3. Representations and Warranties of Holding
Holding and Bank represent and warrant to Whitney and Whitney's Bank
that, as of the date of this Agreement and as of the Closing Date, except as set
forth in the Schedule of Exceptions:
3.01. Consolidated Group; Organization; Qualification. "Holding's
consolidated group," as such term is used in this Agreement, consists of Holding
and Bank. Holding is a corporation duly organized, validly existing and in good
standing under the laws of the State of Louisiana, and is a bank holding company
within the meaning of the Bank Holding Company Act of 1956, as amended (the
"Bank Holding Company Act"). Bank is a national banking association, duly
organized, validly existing and in good standing under the laws of the United
States and is domiciled in the State of Louisiana. Each member of Holding's
consolidated group has all requisite corporate power and authority to own and
lease its property and to carry on its business as it is currently being
conducted and to execute this Agreement and the Merger Agreements to which it is
a party and to consummate the transactions contemplated hereby, and is qualified
and in good standing as a foreign corporation in all jurisdictions in which the
failure to so qualify would have a material adverse effect on such member's
financial condition, results of operations or business.
3.02. Capital Stock; Other Interests. The authorized capital stock (i)
of Holding consists of 10,000,000 shares of Holding Common Stock, of which
2,017,600 shares are issued and outstanding and no shares are held in its
treasury, and 2,000,000 shares of Preferred Stock, without par value, of which
no shares are issued and outstanding; and (ii) of Bank consists of 572,290
shares of common stock, $2.50 par value per share ("Bank Common Stock"), of
which 562,906 shares are issued and outstanding and no shares are held in its
treasury. All issued and outstanding shares of capital stock of each member of
Holding's consolidated group have been duly authorized and are validly issued,
fully paid and (except as provided in 12 U.S.C. Section 55) non-assessable, and
all of the outstanding shares of Bank are owned by Holding, free and clear of
all liens, charges, security interests, mortgages, pledges and other
encumbrances. No member of Holding's consolidated group has outstanding any
stock options or other rights to acquire any shares of its capital stock or any
security convertible into such shares, or has any obligation or commitment to
issue, sell or deliver any of the foregoing or any shares of its capital stock.
There are no agreements among Holding and Holding's shareholders or by which
Holding is bound with respect to the voting or transfer of Holding Common Stock
or granting registration rights to any holder thereof. The outstanding capital
stock of each member of Holding's consolidated group has been issued in
compliance with all legal requirements and in compliance with any preemptive or
similar rights. No member of Holding's consolidated group has a subsidiary
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(other than Bank) or direct or indirect ownership interest exceeding 5% in any
firm, corporation, partnership or other entity.
3.03. Corporate Authorization; No Conflicts. Subject to the approval of
this Agreement and the Merger Agreements by the shareholders of Holding and
Bank, respectively, in accordance with the LBCL and applicable federal law, all
corporate acts and other proceedings required of each member of Holding's
consolidated group for the due and valid authorization, execution, delivery and
performance of this Agreement and the Merger Agreements and consummation of the
Mergers have been validly taken. Subject to their approval by the shareholders
of Holding and Bank and to such regulatory approvals as are required by law,
this Agreement and the Merger Agreements are legal, valid and binding
obligations of Holding and Bank and are enforceable against Holding and Bank,
respectively, in accordance with the respective terms hereof and thereof, except
that enforcement may be limited by bankruptcy, reorganization, insolvency and
other similar laws and court decisions relating to or affecting the enforcement
of creditors' rights generally and by general equitable principles. With respect
to each member of Holding's consolidated group, neither the execution, delivery
or performance of this Agreement or the Merger Agreements, nor the consummation
of the transactions contemplated hereby or thereby will (i) violate, conflict
with, or result in a breach of any provision of, (ii) constitute a default (or
an event which, with notice or lapse of time or both, would constitute a
default) under, (iii) result in the termination of or accelerate the performance
required by, or (iv) result in the creation of any lien, security interest,
charge or encumbrance upon any of its properties or assets under, any of the
terms, conditions or provisions of its articles of incorporation or association
or by-laws or any material note, bond, mortgage, indenture, deed of trust,
lease, license, agreement or other instrument or obligation to or by which it or
any of its assets is bound; or violate any order, writ, injunction, decree,
statute, rule or regulation of any governmental body applicable to it or any of
its assets.
3.04. Financial Statements, Reports and Proxy Statements. Holding has
delivered to Whitney true and complete copies of (a) the consolidated balance
sheets as of December 31, 1994 and December 31, 1995 of Holding and its
consolidated subsidiaries, the related consolidated statements of income,
shareholders' equity and cash flows for the respective years then ended, the
related notes thereto, and the report of its independent public accountants with
respect thereto, as presented in Holding's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995 filed with the Securities and Exchange
Commission ("SEC") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (collectively, the "Financial Statements"), (b) the unaudited
consolidated balance sheets as of June 30, 1996 and June 30, 1995 of Holding and
its consolidated subsidiaries, and the related unaudited statements of income,
shareholders' equity and cash flows for the six-month periods then ended, as
presented in Holding's Quarterly Reports on Form 10-Q filed with the SEC under
the Exchange Act (collectively, the "Interim Financial Statements"), (c) the
annual report to the Board of Governors of the Federal Reserve System ("Federal
Reserve Board") for the year ended December 31, 1995, of each member of
Holding's consolidated group required to file such reports, (d) all call
reports, including all amendments thereto, made to the Office of the Comptroller
of the Currency ("OCC") since December 31, 1992, of each member of Holding's
consolidated group required to file such reports, (e) Holding's Annual Report to
Shareholders for 1995 and all subsequent Quarterly Reports to Shareholders, (f)
all registration statements and reports filed since December 31, 1992 pursuant
to the Securities Act of 1933, as amended (the "Securities Act") and pursuant to
Section 13 or 15(d) of the Exchange Act, of each member of Holding's
consolidated group required to file such reports, and (g) all Proxy Statements
disseminated to Holding's shareholders or the shareholders of any of its
subsidiaries at any time since December 31, 1992.
The Financial Statements and, except as indicated in the notes
thereto or, as permitted by Form 10-Q and the rules and regulations of the SEC,
the Interim Financial Statements, have been (and all financial statements
delivered to Whitney as required by this Agreement will be) prepared in
conformity with generally accepted accounting principles ("GAAP") applied on a
basis consistent with prior periods, and present fairly, in conformity with GAAP
the consolidated results of operations of Holding's consolidated group for the
respective periods covered thereby and the consolidated financial condition of
its consolidated group as of the respective dates thereof. All call and other
regulatory reports referred to above have been filed on the appropriate form and
prepared in all material respects in accordance with such form's instructions
and the applicable rules and regulations of the regulating federal agency. As of
the date of the latest balance sheet forming part of the Interim Financial
Statements (the "Latest Balance Sheet"), no member of Holding's consolidated
group had, nor are any of any such member's assets subject
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to, any material liability, commitment, indebtedness or obligation (of any kind
whatsoever, whether absolute, accrued, contingent, matured or unmatured) which
is not reflected and adequately reserved against in accordance with GAAP. No
report, including any report filed with the Federal Reserve Board, or other
report, proxy statement or registration statement filed by any member of
Holding's consolidated group with the SEC since January 1, 1993, and no report
made to shareholders of Holding since January 1, 1993, as of the respective
dates thereof, contained, and no such report, proxy statement, registration
statement or report to shareholders filed or disseminated after the date of this
Agreement will contain, any untrue statement of a material fact or omitted, or
will omit, to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. The Financial Statements and Interim Financial
Statements are supported by and consistent with a general ledger and detailed
trial balances of investment securities, loans and commitments, depositors'
accounts and cash balances on deposit with other institutions, copies of which
have been made available to Whitney.
3.05. Loan and Investment Portfolios. All loans, discounts and
financing leases (in which a member of Holding's consolidated group is lessor)
reflected on the Latest Balance Sheet (a) were, at the time and under the
circumstances in which made, made for good, valuable and adequate consideration
in the ordinary course of business of its consolidated group, (b) are evidenced
by genuine notes, agreements or other evidences of indebtedness and (c) to the
extent secured, have been secured by valid liens and security interests which
have been perfected. Accurate lists of all loans, discounts and financing leases
as of the date of the Latest Balance Sheet (or a more recent date), and of the
investment portfolios of each member of Holding's consolidated group as of such
date, have been delivered to Whitney. Except as specifically noted on the loan
schedule attached to the Schedule of Exceptions, no member of Holding's
consolidated group is a party to any written or oral loan agreement, note or
borrowing arrangement, including any loan guaranty, that was, as of the most
recent month-end (i) delinquent by more than 30 days in the payment of principal
or interest, (ii) known by any member of Holding's consolidated group to be
otherwise in material default for more than 30 days, (iii) classified as
"substandard," "doubtful," "loss," "other assets especially mentioned" or any
comparable classification by any member of Holding's consolidated group, the OCC
or the FDIC, (iv) an obligation of any director, executive officer or 10%
shareholder of any member of Holding's consolidated group who is subject to
Regulation O of the Federal Reserve Board (12 C.F.R. Part 215), or any person,
corporation or enterprise controlling, controlled by or under common control
with any of the foregoing, or (v) in violation of any law, regulation or rule of
any governmental authority, other than those that are immaterial in amount.
3.06. Adequacy of Allowances for Losses. Each of the allowances for
losses on loans, financing leases and other real estate shown on the Latest
Balance Sheet is adequate in accordance with applicable regulatory guidelines
and GAAP in all material respects, and there are no facts or circumstances known
to the Executive Committee of the Bank which are likely to require in accordance
with applicable regulatory guidelines or GAAP a future material increase in any
such provisions for losses or a material decrease in any of the allowances
therefor reflected in the Latest Balance Sheet. Each of the allowances for
losses on loans, financing leases and other real estate reflected on the books
of Holding's consolidated group at all times from and after the date of the
Latest Balance Sheet is adequate in accordance with applicable regulatory
guidelines and GAAP in all material respects, and there are no facts or
circumstances known to the Executive Committee of the Bank which are likely to
require in accordance with applicable regulatory guidelines or GAAP a future
material increase in any of such provisions for losses or a material decrease in
the allowances therefor reflected in the Latest Balance Sheet.
3.07. Absence of Certain Changes or Events. Since the date of the
Latest Balance Sheet, Holding has not declared, set aside for payment or paid
any dividend to holders of, or declared or made any distribution on, any shares
of Holding's capital stock except regular quarterly dividends from the date
hereof until the Closing Date in amounts not to exceed $.07 per share payable
quarterly (in the case of dividends declared in 1996) and $.08 per share payable
quarterly (in the case of dividends declared in 1997); provided that the
increase in dividend from $.07 to $.08 per share is conditioned on such increase
not disqualifying the Mergers as "pooling of interests" for accounting purposes
or as a "reorganization" within the meaning of Section 368(a) of the Code.
Whitney and Holding shall cooperate in selecting the record date of Holding's
dividend for the quarter in which the Effective Time is to occur to ensure that,
with respect to such quarterly period, the holders of Holding Common Stock do
not receive both a dividend in respect of their shares of Holding Common Stock
and Whitney Common Stock or fail to receive any
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dividend, and Whitney and Holding will use their best efforts to select the
Closing Date such that holders of Holding Common Stock qualify for the dividend
in respect to the Whitney Common Stock (rather than the dividend in respect to
the Holding Common Stock) declared in the quarter in which the Effective Time is
to occur. Since the date of the Latest Balance Sheet, there has been no event or
condition of any character (whether actual or threatened) that has had, or can
reasonably be anticipated to have, a material adverse effect on the financial
condition, results of operations or business of Holding's consolidated group,
taken as a whole. Except as may result from the transactions contemplated by
this Agreement, no such member has, since the date of the Latest Balance Sheet:
(a) borrowed any money or entered into any capital lease or,
except in the ordinary course of business consistent with past practices, (i)
lent any money or pledged any of its credit in connection with any aspect of its
business whether as a guarantor, surety, issuer of a letter of credit or
otherwise, (ii) mortgaged or otherwise subjected to any lien, encumbrance or
other liability any of its assets, (iii) sold, assigned or transferred any of
its assets in excess of $100,000 in the aggregate, or (iv) incurred any material
liability, commitment, indebtedness or obligation (of any kind whatsoever,
whether absolute or contingent);
(b) suffered any material damage, destruction or loss to
immovable or movable property, whether or not covered by insurance;
(c) experienced any material change in asset concentrations as
to customers or industries or in the nature and source of its liabilities or in
the mix of interest-bearing versus non-interest bearing deposits;
(d) received notice or had knowledge or reason to believe that
any material labor unrest exists among any of its employees or that any group,
organization or union has attempted to organize any of its employees;
(e) received notice that one or more substantial customers has
terminated or intends to terminate such customers' relationship with it, with
the result being a material adverse effect on Bank;
(f) failed to operate its business in the ordinary course
consistent with past practices, or failed to use reasonable efforts to preserve
its business organization intact or to preserve the goodwill of its customers
and others with whom it has business relations;
(g) incurred any material loss except for losses adequately
reserved against on the date of this Agreement or on the Latest Balance Sheet
and expenses associated with this transaction, or waived any material right in
connection with any aspect of its business, whether or not in the ordinary
course of business;
(h) forgiven any material debt owed to it, or cancelled any of
its claims or paid any of its noncurrent obligations or liabilities;
(i) made any capital expenditure or capital addition or
betterment in excess of $50,000;
(j) entered into any agreement requiring the payment,
conditionally or otherwise, of any salary, bonus, extra compensation, pension or
severance payment to any of its present or former directors, officers or
employees, except such agreements as are terminable at will without any penalty
or other payment by it or increased (except for increases of not more than 10%
consistent with past practices) the compensation (including salaries, fees,
bonuses, profit sharing, incentive, pension, retirement or other similar
payments) of any such person whose annual compensation would, following such
increase, exceed $50,000;
(k) except as required in accordance with GAAP, changed any
accounting practice followed or employed in preparing the Financial Statements
or Interim Financial Statements;
(l) made any loan, given any discount or entered into any
financing lease which has not been (i) made, at the time and under the
circumstances in which made, for good, valuable and adequate consideration in
the ordinary course of business, (ii) evidenced by genuine notes, agreements or
other evidences of indebtedness and (iii) fully reserved against in an amount
sufficient in accordance with applicable regulatory guidelines to provide for
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all charge-offs reasonably anticipated in the ordinary course of business after
taking into account all recoveries reasonably anticipated in the ordinary course
of business; or
(m) entered into any agreement, contract or commitment to do
any of the foregoing.
3.08. Taxes. Each member of Holding's consolidated group has timely
filed all federal, state and local income, franchise, excise, real and personal
property, employment and other tax returns, tax information returns and reports
required to be filed, has paid all material taxes, interest payments and
penalties as reflected therein which have become due, has made adequate
provision for the payment of all such taxes accruable for all periods ending on
or before the date of this Agreement (and will make such accruals through the
Closing Date) to any city, parish, state, the United States or any other taxing
authority, and is not delinquent in the payment of any material tax or material
governmental charge of any nature. The consolidated federal income tax returns
of Holding's consolidated group have not been audited by the Internal Revenue
Service since the date of Holding's inception. No audit or examination is
presently being conducted by any taxing authority nor has any member of
Holding's consolidated group received written notice from any such taxing
authority of its intention to conduct any investigation or audit or to commence
any such proceeding; no material unpaid tax deficiencies or additional
liabilities of any sort have been proposed to any member of Holding's
consolidated group by any governmental representative, and no agreements for
extension of time for the assessment of any tax have been entered into by or on
behalf of any member of Holding's consolidated group. Each such member has
withheld from its employees (and timely paid to the appropriate governmental
entity) proper and accurate amounts for all periods in material compliance with
all tax withholding provisions of applicable federal, state and local laws
(including, without limitation, income, social security and employment tax
withholding for all forms of compensation).
3.09. Title to Assets. (a) On the date of the Latest Balance Sheet,
each member of Holding's consolidated group had and, except with respect to
assets disposed of for adequate consideration in the ordinary course of business
since such date, now has, good and merchantable title to all real property and
good and merchantable title to all other material properties and assets
reflected on the Latest Balance Sheet, and has good and merchantable title to
all real property and good and merchantable title to all other material
properties and assets acquired since the date of the Latest Balance Sheet, in
each case free and clear of all mortgages, liens, pledges, restrictions,
security interests, charges and encumbrances of any nature except for (i)
mortgages and encumbrances which secure indebtedness which is properly reflected
in the Latest Balance Sheet or which secure deposits of public funds as required
by law; (ii) liens for taxes accrued but not yet payable; (iii) liens arising as
a matter of law in the ordinary course of business, provided that the
obligations secured by such liens are not delinquent or are being contested in
good faith; (iv) such imperfections of title and encumbrances, if any, as do not
materially detract from the value or materially interfere with the present use
of any of such properties or assets or the potential sale of any of such owned
properties or assets; and (v) capital leases and leases, if any, to third
parties for fair and adequate consideration. Each member of Holding's
consolidated group owns, or has valid leasehold interests in, all material
properties and assets used in the conduct of its business. Any real property and
other material assets held under lease by any such member are held under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made of and proposed to be made of such property
by such member of such property.
(b) With respect to each lease of any real property or a
material amount of personal property to which any member of Holding's
consolidated group is a party, except for financing leases in which a member of
such consolidated group is lessor, (i) such lease is in full force and effect in
accordance with its terms; (ii) all rents and other monetary amounts that have
become due and payable thereunder have been paid; (iii) there exists no default,
or event, occurrence, condition or act, which with the giving of notice, the
lapse of time or the happening of any further event, occurrence, condition or
act would become a default under such lease; and (iv) the Mergers will not
constitute a default or a cause for termination or modification of such lease.
(c) No member of Holding's consolidated group has any legal
obligation, absolute or contingent, to any other person to sell or otherwise
dispose of any substantial part of its assets or to sell or dispose of any of
its assets except in the ordinary course of business consistent with past
practices.
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3.10. Legal Matters. (a) To the knowledge of Holding, (i) there is no
material claim, action, suit, proceeding, arbitration or investigation pending
in any court or before or by any governmental agency or instrumentality or
arbitration panel or otherwise, or threatened against any member of Holding's
consolidated group nor (ii) do any facts or circumstances exist that would be
likely to form the basis for any material claim against any member of Holding's
consolidated group that, if adversely determined, would have a material adverse
effect on Holding's consolidated group.
(b) Each member of Holding's consolidated group has complied
in all material respects with and is not in default in any material respect
under (and has not been charged or threatened with or come under investigation
with respect to any charge concerning any material violation of any provision
of) any federal, state or local law, regulation, ordinance, rule or order
(whether executive, judicial, legislative or administrative) or any order, writ,
injunction or decree of any court, agency or instrumentality.
(c) There are no material uncured violations, or violations
with respect to which material refunds or restitution may be required, cited in
any compliance report to any member of Holding's consolidated group as a result
of examination by any bank or bank holding company regulatory authority.
(d) No member of Holding's consolidated group is subject to
any written agreement, memorandum or order with or by any bank or bank holding
company regulatory authority.
(e) To the knowledge of Holding, there is no claim, action,
suit, proceeding, arbitration, or investigation, pending or threatened, in which
any material claim or demand is made or threatened to be made against any member
of Holding's consolidated group or any officer, director, advisory director or
employee, in each case by reason of any person being or having been an officer,
director, advisory director or employee of any such member.
3.11. Employee Benefit Plans. (a) Except for the plans listed on the
subsection of the Schedule of Exceptions that corresponds to this subsection
(the "ERISA Plans"), no member of Holding's consolidated group sponsors,
maintains or contributes to, and no such member has at any time sponsored,
maintained or contributed to, any employee benefit plan that is subject to any
of the provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). Each of the ERISA Plans has been maintained and administered
in all material respects in compliance with its terms, the provisions of ERISA
and all other applicable laws, and, where applicable, the provisions of the
Internal Revenue Code of 1986, as amended (the "Code"). No ERISA Plan, including
any "party in interest" or "disqualified person" with respect thereto has
engaged in a nonexempt prohibited transaction under Section 4975 of the Code or
Section 502(i) of ERISA; there is no matter relating to any of the ERISA Plans
pending or threatened, nor are there any facts or circumstances existing that
could reasonably be expected to lead to (other than routine filings such as
qualification determination filings), proceedings before, or administrative
actions by, any governmental agency; there are no actions, suits or claims
pending or threatened (including, without limitation, breach of fiduciary duty
actions, but excluding routine uncontested claims for benefits) against any of
the ERISA Plans or the assets thereof. Each member of Holding's consolidated
group has complied in all material respects with the reporting and disclosure
requirements of ERISA and the Code. None of the ERISA Plans is a multi-employer
plan within the meaning of Section 3(37) of ERISA. A favorable determination
letter has been issued by the Internal Revenue Service with respect to each
ERISA Plan that is intended to be qualified under Section 401(a) of the Code and
the Internal Revenue Service has taken no action to revoke any such letter and
nothing has occurred, whether by action or failure to act, which would cause the
loss of such qualification. No member of Holding's consolidated group has
sponsored, maintained or made contributions to any plan, fund or arrangement
subject to Title IV of ERISA or the requirements of Section 412 of the Code or
providing for medical benefits, insurance coverage or other similar benefits for
any period extending beyond the termination of employment, except as may be
required under the "COBRA" provisions of ERISA and the Code.
(b) Set forth on the subsection of the Schedule of Exceptions
corresponding to this subsection is a true and complete list of each benefit
plan and benefit arrangement of any member of Holding's consolidated group other
than the ERISA Plans. True and complete copies of all plan (including ERISA
Plan) documents and written agreements (including all amendments and
modifications thereof), together with copies of any tax
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determination letters, trust agreements, summary plan descriptions, insurance
contracts, investment management agreements and the three most recent annual
reports on form series 5500 with respect to such plan or arrangement have been
made available to Whitney.
(c) All group health plans of any member of Holding's
consolidated group to which Section 4980B(f) of the Code or Section 601 of ERISA
applies are in compliance in all material respects with continuation coverage
requirements of Section 4980B(f) of the Code and Section 601 of ERISA and any
prior violations of such sections have been cured prior to the date hereof.
(d) Each plan, fund or arrangement previously sponsored or
maintained by any member of Holding's consolidated group, or to which any member
of Holding's consolidated group previously made contributions which has been
terminated by any member of Holding's consolidated group was terminated in
accordance with ERISA, the Code and the terms of such plan, fund or arrangement
and no event has occurred and no condition exists that would subject any member
of Holding's consolidated group, Whitney or Whitney's Bank to any tax, penalty,
fine or other liability as a result of, directly or indirectly, the termination
of such plan, fund or arrangement.
(e) The current fair market value of the assets of each ERISA
Plan subject to the provisions of Title IV of ERISA equals or exceeds the
present value of the accrued benefits of each such plan as of the end of the
most recent plan year, calculated on a termination and on-going basis, and there
has been no material change likely to change the funding status of any such
plan. No funding deficiency within the meaning of Section 412 of the Code exists
with respect to any ERISA Plan. All contributions required or accrued under the
terms of any plan (including any ERISA Plan) have been made and all insurance
premiums required or accrued under the terms of any plan (including any ERISA
plan) have been paid as of the date hereof.
(f) With respect to the ESOP, neither the acquisition of
securities with the proceeds of a loan nor the retention of such securities
constitutes a breach of fiduciary duty within the meaning of Section 404(a) of
ERISA. The ESOP has been created, organized and administered in accordance with
the requirements applicable to employee stock ownership plans as defined in
Section 401(a) and 4975(e)(7) of the Code. The securities acquired by the ESOP
with the proceeds of a loan have the status of "qualifying employer securities"
as that term is defined in Section 4975(e) of the Code and "employer securities"
as that term is defined in Section 490(1) of the Code.
3.12. Insurance Policies. Each member of Holding's consolidated group
maintains in force insurance policies and bonds in such amounts and against such
liabilities and hazards as are considered by it to be adequate. An accurate list
of all such insurance policies is attached to the Schedule of Exceptions. No
member of Holding's consolidated group is now liable, nor has any such member
received any notice of any material retroactive premium adjustment. All policies
are valid and enforceable and in full force and effect, and no member of
Holding's consolidated group has received any notice of a material premium
increase or cancellation with respect to any of its insurance policies or bonds.
Within the last three years, no member of Holding's consolidated group has been
refused any basic insurance coverage sought or applied for (other than certain
exclusions for coverage of certain events or circumstances as stated in such
polices).
3.13. Agreements. (a) No member of Holding's consolidated group is a
party to:
(i) any collective bargaining agreement;
(ii) other than the employee benefits and plans referred to
in the section of the Schedule of Exceptions that corresponds to subsection
3.11 of this Agreement, any employment or other agreement or contract with
or commitment to any employee except the agreements, arrangements, policies
and practices referred to in the section of the Schedule of Exceptions that
corresponds to subparagraph (j) of subsection 3.07 of this Agreement and such
agreements as are terminable without penalty upon not more than 30 days notice
by the employer;
(iii) any obligation of guaranty or indemnification except
such indemnification of officers, directors, employees and agents of Holding's
consolidated group as on the date of this Agreement may be provided
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in their respective articles of incorporation or association and by-laws (and no
indemnification of any such officer, director, employee or agent has been
authorized, granted or awarded), except if entered into in the ordinary course
of business with respect to customers of any member of Holding's consolidated
group, letters of credit, guaranties of endorsements and guaranties of
signatures;
(iv) any agreement, contract or commitment which is or if
performed will be materially adverse to the financial condition, results of
operations or business of Holding's consolidated group; or
(v) any agreement, contract or commitment containing any
covenant limiting the freedom of any member of Holding's consolidated group
(x) to engage in any line of business permitted by regulatory authorities, (y)
to compete with any person in a line of business permitted by applicable
regulatory guidelines to be engaged in by bank holding companies or Louisiana
state or national banks, as applicable to Bank, or (z) to fulfill any of its
requirements or needs for services or products (including, for example,
contracts with vendors to supply customers with credit insurance); or
(vi) any written agreement, memorandum, letter, order or
decree, formal or informal, with any federal or state regulatory agency.
(b) The subsection of the Schedule of Exceptions that
corresponds to this subsection contains a list of each material agreement,
contract or commitment (except those entered into in the ordinary course of
business with respect to loans, lines of credit, letters of credit, depositor
agreements, certificates of deposit and similar banking activities and equipment
maintenance agreements which are not material) to which any member of Holding's
consolidated group is a party or which affects any such member. To Holding's
knowledge, no member of Holding's consolidated group has in any material respect
breached, nor is there any pending or threatened claim that it has materially
breached, any of the terms or conditions of any of such agreements, contracts or
commitments.
3.14. Licenses, Franchises and Governmental Authorizations. Each member
of Holding's consolidated group possesses all licenses, franchises, permits and
other governmental authorizations necessary for the continued conduct of its
business. The deposits of Bank are insured by the FDIC to the extent provided by
applicable law, and there are no pending or threatened proceedings to revoke or
modify that insurance or for relief under 12 U.S.C.
Section 1818.
3.15. Corporate Documents. Holding has delivered to Whitney, with
respect to each member of Holding's consolidated group, true and correct copies
of its articles of incorporation or articles of association, and its by-laws,
all as amended. All of the foregoing and all of the corporate minutes and stock
transfer records of each member of Holding's consolidated group are current,
complete and correct in all material respects.
3.16. Certain Transactions. No past or present director, executive
officer or five percent shareholder of any member of Holding's consolidated
group has, since January 1, 1992, engaged in any transaction or series of
transactions which, if such member had been subject to Section 14(a) of the
Exchange Act, would have been would be required to be disclosed pursuant to Item
404 of Regulation S-K of the Rules and Regulations of the SEC, other than
transactions which were so disclosed.
3.17. Broker's or Finder's Fees. Except for The Robinson-Humphrey
Company, Inc. ("Robinson-Humphrey"), whose fees pursuant to a contract dated
July 30, 1996 will not exceed $325,000 (except in the event that the Average
Market Price exceeds $36.50), plus the reimbursement of out-of-pocket costs not
to exceed $7,500, no agent, broker, investment banker, investment or financial
advisor or other person acting on behalf of any member of Holding's consolidated
group is entitled to any commission, broker's or finder's fee from any of the
parties hereto in connection with any of the transactions contemplated by this
Agreement.
3.18. Environmental Matters. (a) (i) Each member of Holding's
consolidated group has obtained all material permits, licenses and other
authorizations that are required to be obtained by it under any applicable
Environmental Law Requirements (as hereinafter defined) in connection with the
operation of its businesses and
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ownership of its properties (collectively, the "Subject Properties"), including
without limitation, to the knowledge of Holding, properties acquired by
foreclosure or in settlement of loans;
(ii) Each member of Holding's consolidated group is
in compliance with all terms and conditions of such permits, licenses and
authorizations and with all applicable Environmental Law Requirements, except
for such noncompliance as would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the financial
condition, results of operations or business of Holding and its consolidated
group, taken as a whole;
(iii) There are no past or present events, conditions,
circumstances, activities or plans by any member of Holding's consolidated
group related in any manner to any member of Holding's consolidated group or
the Subject Properties that did or would violate or prevent compliance or
continued compliance with any of the Environmental Law Requirements, or give
rise to any Environmental Liability, as hereinafter defined, except for such as
would not reasonably be expected to have, individually or in the aggregate,
a material adverse effect on the financial condition, results of operations
or business of Holding and its consolidated group, taken as a whole;
(iv) To Holding's knowledge, there is no civil, criminal or
administrative action, suit, demand, claim, order, judgment, hearing, notice or
demand letter, notice of violation, investigation or proceeding pending or
threatened by any person against any member of Holding's consolidated group, or
any prior owner of any of the Subject Properties which relates to the Subject
Properties and relates in any way to any Environmental Law Requirement or
seeks to impose any Environmental Liability; and
(v) To Holding's knowledge, no member of Holding's
consolidated group is subject to or responsible for any material Environmental
Liability which is not set forth and adequately reserved against on the Latest
Balance Sheet.
(b) "Environmental Law Requirement" means all applicable
present and future statutes, regulations, rules, ordinances, codes, licenses,
permits, orders, approvals, plans, authorizations, concessions, franchises and
similar items, of all governmental agencies, departments, commissions, boards,
bureaus, or instrumentalities of the United States, states and political
subdivisions thereof and all applicable judicial, administrative, and regulatory
decrees, judgments and orders relating to the protection of human health or the
environment, including without limitation: (A) all requirements, including but
not limited to those pertaining to reporting, licensing, permitting,
investigation, and remediation of emissions, discharges, releases, or threatened
releases of Hazardous Materials (as such term is defined below), chemical
substances, pollutants, contaminants, or hazardous or toxic substances,
materials or wastes whether solid, liquid, or gaseous in nature, into the air,
surface water, groundwater, or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
Hazardous Materials, chemical substances, pollutants, contaminants, or hazardous
or toxic substances, materials or wastes, whether solid, liquid, or gaseous in
nature; (B) all requirements pertaining to protection of the health and safety
of employees or the public; and (C) all requirements pertaining to the (i)
drilling, production, and abandonment of oil and gas wells, (ii) the
transportation of produced oil and gas, and (iii) the remediation of sites
related to that drilling, production or transportation.
(c) "Hazardous Materials" shall mean: (A) Any "hazardous
substance" as defined by either the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601, et seq.)
("CERCLA") as amended from time to time, or regulations promulgated thereunder;
(B) asbestos; (C) polychlorinated biphenyls; (D) any "regulated substance" as
defined by 40 C.F.R. Section 280.12, or the Louisiana Administrative Code; (E)
any naturally occurring radioactive material ("NORM"), as defined by applicable
federal or state laws or regulations as amended from time to time, irrespective
of whether the NORM is located in Louisiana or another jurisdiction; (F) any
non-hazardous oilfield wastes ("NOW") defined under applicable federal or state
laws or regulations, irrespective of whether those wastes are located in
Louisiana or another jurisdiction; (G) any substance the presence of which on
the Subject Properties is prohibited by any lawful rules and regulations of
legally constituted authorities from time to time in force and effect relating
to the Subject Properties; and (H) any other substance which by any such rule or
regulation requires special handling in its collection, storage, treatment or
disposal.
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d) "Environmental Liability" shall mean (i) any liability or
obligation arising under any Environmental Law Requirement, or (ii) any
liability or obligation under any other theory of law or equity (including
without limitation any liability for personal injury, property damage or
remediation) that results from, or is based upon or related to, the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling, or the emission, discharge, release or threatened release into the
environment, of any Hazardous Material, pollutant, contaminant, chemical, or
industrial, toxic or hazardous substance or waste.
3.19. Compliance with Laws. Each member of Holding's consolidated group
is in compliance with all applicable laws, rules, regulations, orders, writs,
judgments and decrees the noncompliance with which reasonably could be expected
to have a material adverse effect on the financial condition, results of
operations or business of Holding's consolidated group taken as a whole. There
are no material uncured violations, or violations with respect to which material
refunds or restitution may be required, cited in any compliance report to any
member of Holding's consolidated group as a result of examination by any bank or
bank holding company regulatory authority, except those cited in examination
reports previously submitted to, and reviewed by, Whitney.
3.20. Intellectual Property. Each member of Holding's consolidated
group owns or holds valid licenses to use all trademarks, tradenames, service
marks and other intellectual property that are material to the conduct of its
business.
3.21. Community Reinvestment Act. Bank has complied in all material
respects with the provisions of the Community Reinvestment Act ("CRA") and the
rules and regulations thereunder, has CRA ratings of not less than
"satisfactory," and has received no material criticism from regulators with
respect to discriminatory lending practices, and has no knowledge of any
conditions or circumstances that are likely to result in CRA ratings of less
than "satisfactory" or material criticism from regulators with respect to
discriminatory lending practices.
3.22. Accuracy of Statements. No warranty or representation made or to
be made by any member of Holding's consolidated group in this Agreement or in
any document furnished or to be furnished by any member of Holding's
consolidated group pursuant to this Agreement contains or will contain, as of
the date of this Agreement, the effective date of the Registration Statement (as
defined in subsection 5.14 hereof) and the Closing Date, an untrue statement of
a material fact or an omission of a material fact necessary to make the
statements contained herein and therein, in light of the circumstances in which
they are made, not misleading.
Section 4. Representations and Warranties of Whitney and Whitney's Bank
Whitney and Whitney's Bank represent and warrant to Holding
and Bank that as of the date hereof and as of the Closing Date:
4.01. Consolidated Group; Organization; Qualification. "Whitney's
consolidated group," as such term is used in this Agreement, consists of Whitney
and Whitney's Bank and, in addition includes Whitney Bank of Alabama and several
other subsidiaries. Whitney is a corporation duly organized and validly existing
under the laws of the State of Louisiana and is a bank holding company within
the meaning of the Bank Holding Company Act. Whitney's Bank is a national
banking association duly organized and validly existing and in good standing
under the laws of the United States of America. Whitney and Whitney's Bank have
all requisite corporate power and authority to own and lease its property and to
carry on its business as it is currently being conducted and to execute and
deliver this Agreement and the Merger Agreements to which it is a party and to
consummate the transactions contemplated hereby, and is qualified and in good
standing as a foreign corporation in all jurisdictions in which the failure to
so qualify would have a material adverse effect on its financial condition,
results of operations or business.
4.02. Capital Stock. As of the date of this Agreement, the authorized
capital stock of Whitney consists of 40,000,000 shares of Whitney Common Stock.
As of September 30, 1996, 17,165,056 shares of Whitney Common Stock were issued
and outstanding and 494,280 shares were held in its treasury. All issued and
outstanding shares of capital stock of Whitney and Whitney's Bank have been duly
authorized and are validly issued, fully paid and (except as provided in 12
U.S.C. Section 55) non-assessable. The outstanding capital stock of Whitney and
Whitney's
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Bank has been issued in compliance with all legal requirements and any
preemptive or similar rights. Whitney owns all of the issued and outstanding
shares of capital stock of Whitney's Bank free and clear of all liens, charges,
security interests, mortgages, pledges and other encumbrances.
4.03. Corporate Authorization; No Conflicts. Subject to approval of the
Bank Merger Agreement by Whitney as the sole shareholder of Whitney's Bank, all
corporate acts and other proceedings required of Whitney and Whitney's Bank for
the due and valid authorization, execution, delivery and performance of this
Agreement and the Merger Agreements and consummation of the Mergers have been
validly and appropriately taken. Subject to such regulatory approvals as are
required by law, this Agreement and the Merger Agreements are legal, valid and
binding obligations of Whitney and Whitney's Bank as the case may be, and are
enforceable against them in accordance with the respective terms of such
agreements, except that enforcement may be limited by bankruptcy,
reorganization, insolvency and other similar laws and court decisions relating
to or affecting the enforcement of creditors' rights generally and by general
equitable principles. With respect to each of Whitney and Whitney's Bank,
neither the execution, delivery or performance of this Agreement or the Merger
Agreements, nor the consummation of the transactions contemplated hereby or
thereby will (i) violate, conflict with, or result in a breach of any provision
of, (ii) constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, (iii) result in the termination of
or accelerate the performance required by, or (iv) result in the creation of any
lien, security interest, charge or encumbrance upon any of its properties or
assets under, any of the terms, conditions or provisions of its articles of
incorporation or by-laws (or comparable documents) or any material note, bond,
mortgage, indenture, deed of trust, lease, license, agreement or other
instrument or obligation to or by which it or any of its assets is bound; or
violate any order, writ, injunction, decree, statute, rule or regulation of any
governmental body applicable to it or any of its assets.
4.04. Financial Statements; Reports and Proxy Statements. (a) Whitney
has delivered to Holding true and complete copies of (i) the consolidated
balance sheets as of December 31, 1994 and December 31, 1995 of Whitney and its
consolidated subsidiaries, the related consolidated statements of operations,
changes in shareholders' equity and cash flows for the respective years then
ended, the related notes thereto, and the report of its independent public
accountants with respect thereto, as presented in Whitney's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995 filed with the SEC
(collectively, the "Whitney Financial Statements") and (ii) the unaudited
consolidated balance sheet as of June 30, 1996 of Whitney and its consolidated
subsidiaries and the related unaudited statements of operations and cash flows
for the six month period then ended, as presented in Whitney's quarterly report
on Form 10-Q filed with the SEC (collectively, the "Whitney's Interim Financial
Statements").
(b) The Whitney Financial Statements and the Whitney Interim
Financial Statements (each as defined in Schedule 4.04) have been prepared in
conformity with GAAP applied on a basis consistent with prior periods, and
present fairly, in conformity with GAAP, the consolidated results of operations
of Whitney's consolidated group for the respective periods covered thereby and
the consolidated financial condition of its consolidated group as of the
respective dates thereof. All call and other regulatory reports have been filed
on the appropriate form and prepared in all material respects in accordance with
such form's instructions and the applicable rules and regulations of the
regulating federal agency. As of the date of the latest balance sheet forming
part of the Whitney Interim Financial Statements (the "Whitney Latest Balance
Sheet"), no member of Whitney's consolidated group had, nor were any of any of
such member's assets subject to, any material liability, commitment,
indebtedness or obligation (of any kind whatsoever, whether absolute, accrued,
contingent, matured or unmatured), which is not reflected and adequately
reserved against in the Whitney Latest Balance Sheet in accordance with GAAP. No
report, including any report filed with the Federal Reserve Board, or other
report, proxy statement or registration statement filed by any member of
Whitney's consolidated group with the SEC since January 1, 1993, and no report
made to shareholders of Whitney since January 1, 1993, as of the respective
dates thereof, contained and no such report, proxy statement, registration
statement or report to shareholders filed or disseminated after the date of this
Agreement through the Closing will contain any untrue statement of a material
fact or omitted, or will omit, to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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4.05. Legality of Whitney Securities. All shares of Whitney Common
Stock to be issued pursuant to the Company Merger have been duly authorized and,
when issued pursuant to the Company Merger Agreement, will be validly and
legally issued, fully paid and non-assessable, and will be, at the time of their
delivery, free and clear of all liens, charges, security interests, mortgages,
pledges and other encumbrances and any preemptive or similar rights.
4.06. SEC Reports. Whitney has previously delivered to Holding an
accurate and complete copy of the following Whitney reports filed with the SEC
pursuant to the Exchange Act: (a) annual reports on Form 10-K for the years
ended December 31, 1993, 1994 and 1995; (b) quarterly reports on Form 10-Q for
the three months ended March 31 and June 30, 1996; and (c) proxy statements for
the years 1994, 1995 and 1996; as of their respective dates, no such Report or
communication contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Whitney has timely filed all reports and other documents
required to be filed by it under the Securities Act and the Exchange Act.
4.07. Absence of Certain Changes or Events. Since the date of the
Whitney Latest Balance Sheet, there has been no event or condition of any
character (whether actual or threatened) that has had, or can reasonably be
anticipated to have, a material adverse effect on the financial condition,
results of operations or business of Whitney's consolidated group taken as a
whole.
4.08. Legal Matters. (a) There are no material actions, suits,
proceedings, arbitrations or investigations pending or, to Whitney's knowledge
threatened, against any member of Whitney's consolidated group which would be
required to be disclosed in a Form 10-K or Form 10-Q pursuant to Item 103 of
Regulation S-K of the SEC's Rules and Regulations that are not so disclosed.
(b) There are no material uncured violations, or violations
with respect to which material refunds or restitution may be required, cited in
any compliance report to any member of Whitney's consolidated group as a result
of examination by any bank or bank holding company regulatory authority.
(c) No member of Whitney's consolidated group is subject to
any written agreement, memorandum or order or decree with or by any bank or bank
holding company regulatory authority.
4.09. Accuracy of Statements. No warranty or representation made or to
be made by any member of Whitney's consolidated group in this Agreement or in
any document furnished or to be furnished by any member of Whitney's
consolidated group pursuant to this Agreement contains or will contain, as of
the date of this Agreement, the effective date of the Registration Statement (as
defined in Subsection 5.14 hereof) and the Closing Date, an untrue statement of
a material fact or an omission of a material fact necessary to make the
statements contained herein and therein, in light of the circumstances in which
they are made, not misleading.
Section 5. Covenants and Conduct of Parties Prior to the Effective
Date. The parties further covenant and agree as follows:
5.01. Investigations; Planning. Each member of Holding's consolidated
group shall continue to provide to Whitney and Whitney's Bank and to their
authorized representatives full access during all reasonable times to its
premises, properties, books and records (including, without limitation, all
corporate minutes and stock transfer records), and to furnish Whitney and
Whitney's Bank and such representatives with such financial and operating data
and other information of any kind respecting its business and properties as
Whitney and Whitney's Bank shall from time to time reasonably request. Any
investigation shall be conducted in a manner which does not unreasonably
interfere with the operation of the business of Holding's consolidated group.
Each member of Holding's consolidated group agrees to cooperate with Whitney and
Whitney's Bank in connection with planning for the efficient and orderly
combination of the parties and the operation of Whitney and Whitney's Bank (and,
if applicable, Bank) after consummation of the Company Merger. In the event of
termination of this Agreement prior to the Effective Date, Whitney shall, except
to any extent necessary to assert any rights under this Agreement or the Merger
Agreements,
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return, without retaining copies thereof, or destroy (and certify to same under
penalty of perjury) all confidential or non-public documents, work papers and
other materials obtained from Holding's consolidated group in connection with
the transactions contemplated hereby and shall keep such information
confidential, not disclose such information to any other person or entity except
as may be required by legal process, and not use such information in connection
with its business, and shall cause all of its employees, agents and
representatives to keep such information confidential and not to disclose such
information or to use it in connection with its business, in each case unless
and until such information shall come into the public domain through no fault of
Whitney and Whitney's Bank. Whitney and Whitney's Bank shall continue to provide
Holding's executive officers with access to their respective executive officers,
during normal business hours and upon reasonable notice, to discuss the business
and affairs of Whitney and Whitney's Bank to the extent customary in
transactions of the nature contemplated by this Agreement.
5.02. Cooperation and Best Efforts. Each of the parties hereto will
cooperate with the other parties and use its best efforts to (a) procure all
necessary consents and approvals of third parties, (b) complete all necessary
filings, registrations, applications, schedules and certificates, (c) satisfy
all requirements prescribed by law for, and all conditions set forth in this
Agreement to, the consummation of the Mergers and the transactions contemplated
hereby and by the Merger Agreements, and (d) effect the transactions
contemplated by this Agreement and the Merger Agreements at the earliest
practicable date, subject to the proviso contained in Section 1.02 hereof.
5.03. Information for, and Preparation of, Registration Statement and
Proxy Statement. Each of the parties hereto will cooperate in the preparation of
the Registration Statement referred to in Section 5.14 and a proxy statement of
Holding (the "Proxy Statement") which complies with the requirements of the
Securities Act of 1933 (the "Securities Act"), the Exchange Act, the rules and
regulations promulgated thereunder and other applicable federal and state laws,
for the purpose of submitting this Agreement, the Company Merger Agreement and
the transactions contemplated hereby and thereby to Holding's shareholders for
approval. Each of the parties will as promptly as practicable after the date
hereof furnish all such data and information relating to it and its subsidiaries
as any of the other parties may reasonably request for the purpose of including
such data and information in the Registration Statement and the Proxy Statement.
5.04. Approval of Merger Agreements. No approval by Whitney's
shareholders is necessary as respects the Company Merger Agreement. Whitney, as
the sole shareholder of Whitney's Bank, shall take all action necessary to
effect shareholder approval of the Bank Merger Agreement, subject to its right
to delay consummation of the Bank Merger in accordance with Section 1.02.
5.05. Press Releases. Whitney and Holding will cooperate with each
other in the preparation of any press releases announcing the execution of this
Agreement or the consummation of the transactions contemplated hereby. Without
the prior written consent of the chief executive officer of the other party, no
member of Holding's consolidated group or Whitney's consolidated group will
issue any press release or other written statement for general circulation
relating to the transactions contemplated hereby, except as may otherwise be
required by law and, if practical, prior notice of such release is provided to
the other parties. Whitney agrees that it will make a press release with respect
to the results of operations of Whitney and its consolidated group as promptly
as practicable following receipt of financial results covering at least thirty
(30) days of post-mergers combined operations of Whitney to permit the
termination of the limitations set forth in the Shareholder Commitments on the
ability of each person referred to in Section 5.10 to resell shares of Whitney
Common Stock in a manner inconsistent with Whitney's ability to account for the
Mergers as a pooling of interests.
5.06. Preservation of Business. To the extent consistent with sound
business practices, each member of Holding's consolidated group will use its
best efforts to preserve the possession and control of all of its assets other
than those consumed or disposed of for value in the ordinary course of business
to preserve the goodwill of customers and others having business relations with
it and to do nothing knowingly to impair its ability to keep and preserve its
business as it exists on the date of this Agreement.
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5.07. Conduct of Business in the Ordinary Course. Each member of
Holding's consolidated group shall conduct its business only in the ordinary
course consistent with past practices, and shall not, without the prior written
consent of the chief executive officer of Whitney or his duly authorized
designee:
(a) except for the declaration and payment of regular
quarterly dividends during 1996 and 1997 in accordance with Section 3.07 until
the Effective Time, declare, set aside, increase or pay any dividend, or declare
or make any distribution on, or directly or indirectly combine, redeem,
reclassify, purchase, or otherwise acquire, any shares of its capital stock or
authorize the creation or issuance of or issue any additional shares of its
capital stock or any securities or obligations convertible into or exchangeable
for its capital stock, provided that this subparagraph shall not prevent
dividends or distributions from any member of Holding's consolidated group to
any other member of such consolidated group;
(b) amend its articles of incorporation or association or by-
laws or adopt or amend any resolution or agreement concerning indemnification of
its directors or officers;
(c) enter into or modify any agreement so as to require the
payment, conditionally or otherwise, of any salary, bonus, extra compensation,
pension or severance payment to any of its present or former directors, officers
or employees except (i) such agreements as are terminable at will without any
penalty or other payment by it, or increase the compensation (including
salaries, fees, bonuses, profit sharing, incentive, pension, retirement or other
similar benefits and payments) of any such person in any manner inconsistent
with its past practices and (ii) after consultation with Whitney's chief
executive officer, bonuses to certain officers and employees in amounts in an
aggregate amount not exceeding $150,000, with such bonuses to be paid upon the
completion of the full conversion of Bank's data processing system to Whitney's
Bank's system and in no event no later than November 1, 1997;
(d) except as described in the Schedule of Exceptions or
except in the ordinary course of business consistent with past practices, place
or suffer to exist on any of its assets or properties any mortgage, pledge,
lien, charge or other encumbrance, except those of the character described in
subsection 3.09 hereof, or cancel any material indebtedness owing to it or any
claims which it may have possessed, or waive any right of substantial value or
discharge or satisfy any material noncurrent liability;
(e) acquire another business or merge or consolidate with
another entity, or sell or otherwise dispose of a material part of its assets
or, except in the ordinary course of business consistent with past practices or
as described in the Schedule of Exceptions;
(f) commit any act that is intended or reasonably may be
expected to result in any of its representations and warranties set forth in
this Agreement being or becoming untrue in any material respect, or in any of
the conditions to the Mergers set forth in Section 6 not being satisfied, or in
a violation of any provision of this Agreement, except, in every case, as may be
required by applicable law;
(g) commit or fail to take any act which act or omission is
intended or reasonably may be expected to result in a material breach or
violation of any applicable law, statute, rule, governmental regulation or
order;
(h) fail to maintain its books, accounts and records in the
usual manner on a basis consistent with that heretofore employed;
(i) fail to pay, or to make adequate provision in all material
respects for the payment of, all taxes, interest payments and penalties due and
payable (for all periods up to the Effective Date, including that portion of its
fiscal year to and including the Effective Date) to any city, parish, state, the
United States or any other taxing authority, except those being contested in
good faith by appropriate proceedings and for which sufficient reserves have
been established;
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(j) dispose of investment securities in amounts or in a manner
inconsistent with past practices; or make investments in non-investment grade
securities or which are inconsistent with past investment practices;
(k) enter into any new line of non-banking business;
(l) (i) except as described in the Schedule of Exceptions,
charge off (except as may otherwise be required by law or by regulatory
authorities or by GAAP consistently applied) or sell (except for a price not
materially less than the value thereof) any of its portfolio of loans, discounts
or financing leases, or (ii) except as set forth on Schedule of Exceptions, sell
any asset held as other real estate or other foreclosed assets for an amount
materially less than 100% of its book value at the date of the Latest Balance
Sheet;
(m) make any extension of credit which, when added to all
other extensions of credit to a borrower and its affiliates, would exceed
Holding's or Bank's applicable regulatory lending limits;
(n) take or cause to be taken any action which would
disqualify the Mergers as a "pooling of interests" for accounting purposes or as
a "reorganization" within the meaning of Section 368(a) of the Code; or
(o) agree or commit to do any of the foregoing.
5.08. Additional Information. Holding will provide Whitney and Whitney
will provide Holding (a) with prompt written notice of any material adverse
change in the financial condition, results of operations, business or prospects
of any member of its consolidated group, any material breach by any such member
of any of its warranties, representations or covenants in this Agreement, or any
material action taken or proposed to be taken with respect to any member of its
consolidated group by any regulatory agency, (b) as soon as they become
available, copies of any financial statements, reports and other documents of
the type referred to in subsection 3.04 with respect to each member of its
consolidated group, and (c) promptly upon its dissemination, any report
disseminated to its shareholders.
5.09. Holding Shareholder Approval. Holding's Board of Directors shall
submit this Agreement and the Company Merger Agreement to its shareholders for
approval in accordance with the applicable law, together with its recommendation
that such approval be given, at a special meeting of the shareholders of Holding
duly called and convened for that purpose as soon as practicable after the
effective date of the Registration Statement. Holding, as the sole shareholder
of Bank, shall take all action to effect shareholder approval of the Bank Merger
Agreement. The foregoing obligations of Holding and its Board of Directors
specified in this subsection 5.09 are subject to the proviso in the last
sentence of Section 5.12.
5.10. Restricted Whitney Common Stock. Holding will use its best
efforts to obtain, prior to Whitney's filing of the Registration Statement
referred to in Section 5.14, an agreement from each person who is a director,
executive officer or 10% beneficial owner of securities of Holding (and such
other persons who Holding reasonably believes to be a "affiliate" of Holding for
purposes of the federal securities laws, which persons are listed on Exhibit
5.10 to the Schedule of Exceptions) who will receive shares of Whitney Common
Stock by virtue of the Company Merger to the effect that such person (i) will
not dispose of any Whitney Common Stock received pursuant to the Mergers in
violation of Rule 145 of the Securities Act or the rules and regulations of the
SEC thereunder or in a manner that would disqualify the transactions
contemplated hereby from pooling of interests accounting treatment, (ii) will
agree to escrow all such shares until Whitney has made a public announcement of
the financial results of at least 30 days of combined operations following the
Effective Date and (iii) in the case of directors and executive officers
(subject only to any fiduciary obligation that such individuals may have to
persons other than Holding or Bank or their respective shareholders), will agree
to vote all shares as to which they have or share voting power in favor of this
Agreement and the Mergers ("Shareholder's Commitment"). With respect to any
person or persons beneficially owning 5% or more, but less than 10%, of the
Holding Common Stock (a "Five Percent Owner"), Holding shall use its best
efforts to either obtain a Shareholder's Commitment from each such person or
persons or provide to Whitney and Whitney's independent public accountants (a)
such certificates of Holding or Bank, their officers or third parties and other
documentary evidence, in form and substance satisfactory to Whitney, as Whitney
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shall determine to be necessary for Whitney and its independent public
accountants to reasonably conclude that such Five Percent Owner is not an
"affiliate" of Holding for purposes of the federal securities laws or (b) a
legal opinion, from counsel reasonably acceptable to Whitney, to the effect that
such Five Percent Owner is not an "affiliate" of Holding for purposes of the
federal securities laws, such opinion to be in form and substance satisfactory
to Whitney and its independent public accountants.
5.11. Loan Policy. No member of Holding's consolidated group will make
any loans, or enter into any commitments to make loans, which vary other than in
immaterial respects from its written loan policies, a true and correct copy of
which loan policies has been provided to Whitney, provided that this covenant
shall not prohibit Bank from extending or renewing credit or loans in the
ordinary course of business consistent with past lending practices or in
connection with the workout or renegotiation of loans currently in its loan
portfolio.
5.12. No Solicitations. Prior to the Effective Time or until the
termination of this Agreement, no member of Holding's consolidated group shall,
without the prior approval of Whitney, directly or indirectly, solicit or
initiate inquiries or proposals with respect to, or, except to the extent
determined by the Board of Directors of Holding in good faith, after
consultation with its financial advisors and its legal counsel, to be required
to discharge properly the directors' fiduciary duties to Holding's consolidated
group and its shareholders, furnish any information relating to, or participate
in any negotiations or discussions concerning, any Acquisition Transaction (as
defined in Section 7.01) or any other acquisition or purchase of all or a
substantial portion of its assets, or of a substantial equity interest in it or
withdraw its recommendation to the shareholders of Holding of the Mergers or
make a recommendation of any other Acquisition Transaction, or any business
combination with it, other than as contemplated by this Agreement (and in no
event will any such information be supplied except pursuant to a confidentiality
agreement in form and substance as to confidentiality substantially the same as
the confidentiality agreement between Holding and Whitney); and each such member
shall instruct its officers, directors, agents and affiliates to refrain from
doing any of the above, and will notify Whitney immediately if any such
inquiries or proposals are received by it, any such information is requested
from it, or any such negotiations or discussions are sought to be initiated with
it or any of its officers, directors, agents and affiliates; provided, however,
that nothing contained herein shall be deemed to prohibit any officer or
director of Holding or Bank from taking any action that the Board of Directors
of Holding or Bank, as the case may be, determines, in good faith after
consultation with and receipt of an opinion of counsel, is required by law or is
required to discharge his fiduciary duties to Holding's consolidated group and
its shareholders.
5.13. Operating Functions. Each member of Holding's consolidated group
agrees to cooperate in the consolidation of appropriate operating functions with
Whitney to be effective on the Effective Date, provided that the foregoing shall
not be deemed to require any action that, in the opinion of such member's Board
of Directors, would adversely affect its operations if the Mergers were not
consummated.
5.14. Whitney Registration Statement. (a) Whitney will prepare and file
on Form S-4 a registration statement (the "Registration Statement") under the
Securities Act (which will include the Proxy Statement) complying with all the
requirements of the Securities Act applicable thereto, for the purpose, among
other things, of registering the Whitney Common Stock which will be issued to
the holders of Holding Common Stock pursuant to the Company Merger. Whitney
shall use its best efforts to cause the Registration Statement to become
effective as soon as practicable, to qualify the Whitney Common Stock under the
securities or blue sky laws of such jurisdictions as may be required and to keep
the Registration Statement and such qualifications current and in effect for so
long as is necessary to consummate the transactions contemplated hereby. As a
result of the registration of the Whitney Common Stock pursuant to the
Registration Statement, such stock shall be freely tradeable by the shareholders
of Holding except to the extent that the transfer of any shares of Whitney
Common Stock received by shareholders of Holding is subject to the provisions of
Rule 145 under the Securities Act or restricted under applicable tax or pooling
of interests rules.
(b) Whitney will indemnify and hold harmless each member of
Holding's consolidated group and each of their respective directors, officers
and other persons, if any, who control Holding within the meaning of the
Securities Act from and against (including, without limitation, advance, prior
to final disposition of the matter, the expenses of defending) any losses,
claims, damages, liabilities or judgments, joint or several, to which they or
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any of them may become subject, insofar as such losses, claims, damages,
liabilities, or judgments (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or in any amendment or supplement
thereto, or in any state application for qualification, permit, exemption or
registration as a broker/dealer, or in any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each such person for any
legal or other expenses reasonably incurred by such person in connection with
investigating or defending any such action or claim; provided, however, that
Whitney shall not be liable, in any such case, to the extent that any such loss,
claim, damage, liability, or judgment (or action in respect thereof) arises out
of or is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, or any such amendment or
supplement thereto, or in any such state application, or in any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished to Whitney by or on behalf of any member of Holding's consolidated
group or any officer, director or affiliate of any such member for use therein.
(c) Promptly after receipt by an indemnified party under
subparagraph (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
Whitney under such subparagraph, notify Whitney in writing of the commencement
thereof. In case any such action shall be brought against any indemnified party
and it shall notify Whitney of the commencement thereof, Whitney shall be
entitled to participate therein and, to the extent that it shall wish, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party, and, after notice from Whitney to such indemnified party of its election
so to assume the defense thereof, Whitney shall not be liable to such
indemnified party under such subparagraph for any legal expenses of other
counsel or any other expenses subsequently incurred by such indemnified party;
provided, however, if Whitney elects not to assume such defense or if counsel
for the indemnified party advises Whitney in writing that there are material
substantive issues which raise conflicts of interest between Whitney or Holding
and the indemnified party, such indemnified party may retain counsel
satisfactory to it and Whitney shall pay all reasonable fees and expenses of
such counsel for the indemnified party promptly as statements therefor are
received. Notwithstanding the foregoing, Whitney shall not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
Whitney in respect of such claim unless in the reasonable judgment of any such
indemnified party a conflict of interest exists between such indemnified party
and any other of such indemnified parties in respect to such claims.
(d) The provisions of Section 5.14(b) and (c) are intended for
the benefit of, and shall be enforceable by, the parties entitled to
indemnification thereunder and each such party's heirs, representatives or
successors.
5.15. Application to Regulatory Authorities. Whitney shall prepare, as
promptly as practicable, all regulatory applications and filings which are
required to be made with respect to the Mergers, subject to its right to delay
consummation of the Bank Merger in accordance with Section 1.02.
5.16. Revenue Ruling. Whitney may elect to prepare (and in that event
Holding shall cooperate in the preparation of) a request for a ruling from the
Internal Revenue Service with respect to certain tax matters in connection with
the transactions contemplated by this Agreement and the Merger Agreements.
5.17. Bond for Lost Certificates. Upon receipt of notice from any of
its shareholders that a certificate representing Holding Common Stock has been
lost or destroyed and prior to issuing a new certificate, Holding shall require
such shareholder to post a bond in such amount as is sufficient to support the
shareholder's agreement to indemnify Holding against any claim made by the owner
of such certificate, unless Whitney agrees to the waiver of such bond
requirement.
5.18. Withholding. Whitney shall be entitled to deduct and withhold
from the consideration otherwise payable to any holder of Holding Common Stock
after the Effective Time such amounts as Whitney may be required by law to
deduct and withhold therefrom. All such deductions and withholdings shall be
deemed for all purposes of
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this Agreement and the Merger Agreements to have been paid to the person with
respect to whom such deduction and withholding was made.
5.19. NASDAQ/NMS. Whitney shall cause the shares of Whitney Common
Stock to be issued in the Merger to be duly authorized, validly issued, fully
paid and nonassessable, free of any preemptive or similar right and to be
approved for quotation in the NASDAQ Stock Market prior to or at the Effective
Time.
5.20. Continuing Indemnity; Insurance. Whitney covenants and agrees
that:
(a) all rights to indemnification (including, without
limitation, rights to mandatory advancement of expenses) and all limitations of
liability existing in favor of indemnified parties under Holding's Articles of
Incorporation and By-Laws and in the Articles of Association and By-Laws of Bank
(as the case may be) as in effect as of the date of this Agreement with respect
to matters occurring prior to or at the Effective Time (an "Indemnified Party")
shall survive the Mergers and shall continue in full force and effect, without
any amendment thereto, for a period concurrent with the applicable statute of
limitations; provided, however, that all rights to indemnification in respect of
any claim asserted or made as to which Whitney is notified in writing within
such period shall continue until the final disposition of such claim. Without
limiting the foregoing, in any case in which approval is required to effectuate
any indemnification, the determination of any such approval shall be made, at
the election of the Indemnified Party, by independent counsel mutually agreed
upon between Whitney and the Indemnified Party.
(b) Promptly after receipt by an Indemnified Party of notice
of the commencement of any action, such Indemnified Party shall, if a claim in
respect thereof is to be made against Whitney under such subparagraph, notify
Whitney in writing of the commencement thereof. In case any such action shall be
brought against any Indemnified Party, Whitney shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Party, and, after
notice from Whitney to such Indemnified Party of its election so to assume the
defense thereof, Whitney shall not be liable to such Indemnified Party under
such subparagraph for any legal expenses of other counsel or any other expenses
subsequently incurred by such Indemnified Party; provided, however, if Whitney
elects not to assume such defense or if counsel for the Indemnified Party
advises Whitney in writing that there are material substantive issues which
raise conflicts of interest between Whitney or Holding and the Indemnified
Party, such Indemnified Party may retain counsel satisfactory to it, and Whitney
shall pay all reasonable fees and expenses of such counsel for the Indemnified
Party promptly as statements therefor are received. Notwithstanding the
foregoing, Whitney shall not be obligated to pay the fees and expenses of more
than one counsel for all Indemnified Parties in respect of such claim unless in
the reasonable judgment of an Indemnified Party a conflict of interest exists
between an Indemnified Party and any other Indemnified Parties in respect to
such claims.
(c) Whitney shall use best efforts to cause the persons
serving as officers or directors of Holding or Bank, or both, immediately prior
to the Effective Time to be covered for a period of three (3) years from the
Effective Time by the directors' and officers' liability insurance policy
maintained by Holding and Bank with respect to acts or omissions occurring prior
to or at the respective effective times which were committed by such officers
and directors in their capacity as such; provided that Whitney may substitute
therefor policies of at least the same coverage and amounts containing terms and
conditions which are no less advantageous to such directors and officers, and,
provided further that Whitney shall not be obligated to make premium payments
for the insurance policies provided by this Section 5.20 to the extent such
premiums exceed 150% of the premiums paid as of the date hereof by Holding for
such insurance.
(d) If Whitney or any of its successors or assigns (i) shall
consolidate with or merge into any corporation or entity and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) shall transfer all or substantially all of its properties and assets to any
individual, corporation or other entity, then and in each such case, proper
provisions shall be made so that the successors and assigns of Whitney shall
assume the obligations set forth in this Section 5.20.
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(e) The provisions of this Section 5.20 are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party and his or
her heirs and representatives.
5.21. Employees and Certain Other Matters. (a) All employees of Holding
and Bank at the Effective Time shall become or remain employees of Bank upon
consummation of the Company Merger, and upon consummation of the Bank Merger all
employees of Bank at the effective time of the Bank Merger shall become
employees of Whitney's Bank. Although Whitney and Whitney's Bank will use their
best efforts to retain Holding's and Bank's employees either in their existing
positions or other positions in the Whitney system, Whitney, Whitney's Bank and
Bank reserve, subject to any such employee's rights to receive payments pursuant
to (i) the agreements set forth in paragraph 4 of the section of the Schedule of
Exceptions that corresponds to Section 3.07 and (ii) bonuses payable to
employees pursuant to Section 5.07(c), the right to terminate any such employee,
and to modify the job duties, compensation and authority of such employee. At
the Effective Time, all persons then employed by Holding and Bank shall be
eligible for such employee benefits as are generally available to employees of
Whitney's Bank having like tenure, officer status and compensation levels except
(i) all executive and senior level management bonuses, stock options, restricted
stock and similar benefits shall be at the discretion of Whitney's Bank's
Compensation Committee and (ii) all Holding and Bank employees who are employed
at the Effective Time shall be given full credit for all prior service as
employees of Holding or Bank provided, however, that all such employees shall be
treated as newly hired Whitney's Bank employees (i.e., prior service credit with
Holding and Bank shall not be considered in determining future benefits under
Whitney's or Whitney's Bank's defined benefit pension plan) for all purposes of
Whitney's or Whitney's Bank's defined benefit pension plan.
(b) Holding and Bank agree that they will not, without the
prior written consent of Whitney or except as provided in the last sentence of
this section 5.21(b), take any action to terminate those certain agreements
between Holding and Bank, on the one hand, and certain employees of Bank, on the
other hand, which agreements are more fully described in Paragraph 4(a) of
Section 3.07 of the Schedule of Exceptions (the "Change in Control Agreements"),
and, upon receipt of the notice specified in the following sentence, will assign
them to Whitney at the Closing with such assignments to be effective only at the
Effective Time. Whitney agrees to notify Holding and Bank in writing, at least
30 days prior to Closing, of the Change in Control Agreements that Whitney
agrees to assume in accordance with Section 5 of the Change in Control
Agreements. Holding and Bank may terminate, in accordance with their respective
terms, any such Change in Control Agreement that Whitney does not so agree to
assume.
5.22. Undertaking to File Reports and Cooperate in Rule 144
Transactions. Whitney covenants to use its best efforts to file in a timely
manner all material required to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act, or the rules and regulations promulgated thereunder, so as to
continue the availability of Rule 144 for resales by affiliates of Holding and
Bank of the shares of Whitney Common Stock received by them in the Company
Merger. In the event of any proposed sale of such Whitney Common Stock by any
such former shareholder of Holding Common Stock who receives shares of Whitney
Common Stock by reason of the Company Merger, Whitney covenants to use its best
efforts to cooperate with such shareholder so as to enable such sale to be made
in accordance with the requirements of Whitney's transfer agents and the
reasonable requirements of the broker through which such sale is proposed to be
executed. Without limiting the generality of the foregoing, Whitney agrees to
furnish, upon request and at its expense, to the extent it is able, with respect
to each such sale a written statement certifying that Whitney has filed all
reports required to be filed by it under the Exchange Act for a period of at
least one year preceding the sale of the proposed sale, and, in addition, has
filed the most recent annual report required to be filed by it thereunder.
Notwithstanding anything contained in this Section 5.22, Whitney shall not be
required to maintain the registration of the Whitney Common Stock under Section
12 of the Exchange Act if it shall at any time be entitled to deregister those
shares pursuant to the Exchange Act and the rules and regulations thereunder.
5.23. Whitney Conduct of Business. From the date hereof through the
Closing, without the prior written consent of the chief executive officer of
Holding or his duly authorized designee, Whitney shall not take or cause to be
taken any action that would disqualify the Mergers as a "pooling of interests"
for accounting purposes or as a "reorganization" within the meaning of Section
368(a) of the Code.
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Section 6. Conditions of Closing
6.01. Conditions of All Parties. The obligations of each of the parties
hereto to consummate the Company Merger are subject to the satisfaction of the
following conditions at or prior to the Closing:
(a) Shareholder Approval. This Agreement and the Company
Merger Agreement shall have been duly approved by the shareholders of Holding.
(b) Effective Registration Statement. The Registration
Statement shall have become effective prior to the mailing of the Proxy
Statement, no stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceedings for that purpose shall have
been instituted or, to the knowledge of any party, shall be contemplated, and
Whitney shall have received all state securities laws permits and authorizations
necessary to consummate the transactions contemplated hereby.
(c) No Restraining Action. No action or proceeding shall have
been threatened or instituted before a court or other governmental body to
restrain or prohibit the transactions contemplated by the Merger Agreements or
this Agreement or to obtain damages or other relief in connection with the
execution of such agreements or the consummation of the transactions
contemplated hereby or thereby; and no governmental agency shall have given
notice to any party hereto to the effect that consummation of the transactions
contemplated by the Merger Agreements or this Agreement would constitute a
violation of any law or that it intends to commence proceedings to restrain
consummation of the Mergers.
(d) Statutory Requirements and Regulatory Approval. All
statutory requirements for the valid consummation of the transactions
contemplated by the Merger Agreements and this Agreement shall have been
fulfilled; all appropriate orders, consents and approvals from all regulatory
agencies and other governmental authorities whose order, consent or approval is
required by law for the consummation of the transactions contemplated by this
Agreement and the Merger Agreements shall have been received; and the terms of
all requisite orders, consents and approvals shall then permit the effectuation
of the Mergers without imposing any material conditions with respect thereto
except for any such conditions that are acceptable to Whitney.
(e) Tax Opinion. Whitney and Holding shall have received the
opinion of Arthur Andersen LLP, dated as of the Closing Date, in form and
substance reasonably satisfactory to both of them, as to certain tax aspects of
the Mergers, including an opinion that the receipt of Whitney Common Stock by
Holding's shareholders will not be a taxable event to such shareholders.
6.02. Additional Conditions of Whitney. The obligations of Whitney
and Whitney's Bank to consummate the Company Merger are also subject to the
satisfaction of the following additional conditions at or prior to the Closing:
(a) Representations, Warranties and Covenants. The
representations and warranties of Holding and Bank contained in this Agreement
shall be true and correct in all material respects, individually and in the
aggregate, on and as of the Closing Date, with the same effect as though made on
and as of such date, except to the extent of changes permitted by the terms of
this Agreement, and each of Holding and Bank shall have in all material respects
performed all obligations and complied with all covenants required by this
Agreement and the Merger Agreements to be performed or complied with by it at or
prior to the Closing. In addition, each of Holding and Bank shall have delivered
to Whitney and Whitney's Bank its certificate dated as of the Closing Date and
signed by its chief executive officer and chief financial officer to the effect
that, except as specified in such certificate, such persons do not know, and
have no reasonable grounds to know, of any material failure or breach of any
representation, warranty or covenant made by it in this Agreement.
(b) No Material Adverse Change. There shall not have occurred
any material adverse change from the date of the Latest Balance Sheet to the
Closing Date in the financial condition, results of operations or business of
Holding's consolidated group taken as a whole; provided, however, that (i) the
incurrence by Holding of
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expenses (including fees and expenses of Robinson-Humphrey; Deloitte & Touche
LLP; Duval, Funderburk, Sundbery & Lovell; and Correro Fishman Haygood Phelps
Weiss Walmsley & Casteix, L.L.P.), and payments to executive officers or other
employees of Holding or Bank pursuant to agreements set forth on the Schedule of
Exceptions and (ii) the occurrence of an event specifically permitted under
Section 5.07 or otherwise expressly consented to in writing by Whitney, are
expressly deemed not to constitute such a material adverse change.
(c) Accountants' Letters. Whitney shall have received
"comfort" letters in conformity with SAS No. 72 from Deloitte & Touche LLP,
independent public accountants for Holding, dated, respectively, within three
(3) days prior to the date of the Proxy Statement and within three (3) days
prior to the Closing Date, in customary form for transactions of this sort and
in substance satisfactory to Whitney.
(d) Opinion of Counsel. Whitney shall have received from
Duval, Funderburk, Sundbery & Lovell, general counsel to Holding, and Correro
Fishman Haygood Phelps Weiss Walmsley & Casteix, L.L.P., special counsel to
Holding, opinions, dated as of the Closing Date, customary in scope and in form
and substance satisfactory to Whitney. In giving such opinions, such counsel may
rely as to questions of fact upon certificates of one or more officers of the
members of Holding's consolidated group and governmental officials.
(e) Tax Consequences of Mergers. Whitney shall have received
satisfactory assurances from their independent accountants that the consummation
of the Mergers will not be a taxable event to Whitney and Whitney's Bank.
(f) Pooling of Interest. Within twenty (20) days of the
execution of this Agreement and within three (3) days prior to the Closing Date,
Deloitte & Touche LLP shall issue to Whitney a "poolability letter" addressing
paragraphs 46a, 46b, 47c and 47d of the APB Opinion No. 16 "Business
Combinations" as to whether or not Deloitte & Touche LLP believes that Holding
would meet these specific criteria for a pooling-of-interest in accordance with
generally accepted accounting principles. Deloitte & Touche LLP will express no
opinion as to whether Whitney will be permitted to account for the Mergers as a
pooling of interests. Neither Whitney's independent accountants nor the SEC
shall have taken the position that the transactions contemplated by this
Agreement and the Merger Agreements do not qualify for pooling of interests
accounting treatment.
(g) Shareholder's Commitment. A Shareholder's Commitment
substantially in the form specified on Exhibit 6.02(g) hereto (as contemplated
by Section 5.10) shall have been executed by each person who serves as an
executive officer or director of Holding or who owns 10% or more of the Holding
Common Stock outstanding (and such other persons who are "affiliates" of Holding
for purposes of the federal securities laws, including, as applicable, those
persons who are listed on Exhibit 5.10 to the Schedule of Exceptions), and in
the case of any Five Percent Owners, such a Shareholder's Commitment shall have
been executed, the certificates and other documentary evidence referred to in
clause (a) of Section 5.10 shall have been provided, or the legal opinion or
opinions referred to in clause (b) of Section 5.10 shall have been delivered;
and Whitney shall have received from each such person a written confirmation
dated not earlier than five days prior to the Closing Date to the effect that
each representation made in such person's Shareholder's Commitment or other
certificate or documentation otherwise provided to Whitney is true and correct
as of the date of such confirmation and that such person has complied with all
of his or her covenants therein through the date of such confirmation.
(h) Regulatory Action. No adverse regulatory action shall be
pending or threatened against any member of Holding's consolidated group,
including (without limitation) any proposed amendment to any existing agreement,
memorandum, letter, order or decree, formal or informal, between any regulator
and any member of Holding's consolidated group, if such action would or could
impose any material liability on Whitney or interfere in any material respect
with the conduct of the businesses of Whitney's consolidated group following the
Mergers.
6.03. Additional Conditions of Holding. The obligations of Holding to
consummate the Company Merger are also subject to the satisfaction of the
following additional conditions at or prior to the Closing:
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(a) Representations, Warranties and Covenants. The
representations and warranties of Whitney and Whitney's Bank contained in this
Agreement shall be true and correct in all material respects, individually and
in the aggregate, on the Closing Date, with the same effect as though made on
and as of such date, except to the extent of changes permitted by the terms of
this Agreement, and each of Whitney and Whitney's Bank shall have in all
material respects performed all obligations and complied with all covenants
required by this Agreement and the Merger Agreements to be performed or complied
with by it at or prior to the Closing. In addition, each of Whitney and
Whitney's Bank shall have delivered to Holding and Bank its certificate dated as
of the Closing Date and signed by its chief executive officer and chief
financial officer to the effect that, except as specified in such certificate,
such persons do not know, and have no reasonable grounds to know, of any
material failure or breach of any representation, warranty or covenant made by
it in this Agreement.
(b) Opinion of Counsel. Holding shall have received from
Milling, Benson, Woodward, Hillyer, Pierson & Miller, L.L.P., counsel for
Whitney and Whitney's Bank, an opinion, dated as of the Closing Date, customary
in scope and in form and substance satisfactory to Holding. In giving such
opinion, such counsel may rely as to questions of fact upon certificates of one
or more officers of Whitney or members of Whitney's consolidated group, and
governmental officials.
(c) Opinion of Investment Bankers. Holding shall have received
letters from Robinson-Humphrey dated the date of the mailing of the Proxy
Statement to shareholders of Holding and dated the date of the meeting of the
shareholders of Holding, in each case in form and substance satisfactory to
Holding, confirming such financial advisor's prior opinion to the Board of
Directors of Holding to the effect that the consideration to be paid in the
Company Merger is fair to its shareholders from a financial point of view.
(d) No Material Adverse Change. There shall not have occurred
any material adverse change from Whitney's Latest Balance Sheet to the Effective
Date in the financial condition, results of operations or business of Whitney's
consolidated group taken as a whole.
(e) No Registration Rights. Holding shall have delivered to
Whitney termination agreements, in form and substance satisfactory to Whitney,
duly executed by ATCO Development, Inc. (and/or Surrat Trust, N.V.) and the
ESOP, respectively, pursuant to which each of them shall have waived and
terminated any and all rights that they may have to require registration under
the Securities Act of shares of Holding Common Stock (and any shares of Whitney
Common Stock into which such shares are to be converted in the Company Merger)
pursuant to the Subscription Agreement dated July 24, 1984 between Holding and
Surrat Trust, N.V. c/o ATCO Development, Inc. and the Subscription Agreement
dated May 23, 1984 between Holding and the ESOP, or otherwise.
6.04. Waiver of Conditions. Any condition to a party's obligations
hereunder may be waived by that party, other than the conditions specified in
subparagraphs (a), (b) and (d) of subsection 6.01 hereof and the condition
specified in subparagraph (c) of subsection 6.03 hereof. The failure to waive
any condition hereunder shall not be deemed a breach of subsection 5.02 hereof.
Section 7. Termination
7.01. Termination. This Agreement and the Merger Agreements may be
terminated and the Mergers contemplated herein abandoned at any time before the
Effective Time, whether before or after approval by the shareholders of Holding:
(a) Mutual Consent. By the mutual consent of the Boards of
Directors of Whitney and Holding.
(b) Breach. By the Board of Directors of either Whitney or
Holding in the event of a breach by any member of the consolidated group of the
other of them of any representation or warranty contained in this Agreement or
of any covenant contained in this Agreement, which in either case cannot be, or
has not been, cured within 45 days after written notice of such breach is given
to the entity committing such breach, provided that the right to effect such
cure shall not extend beyond the date set forth in subparagraph (c) below.
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(c) Abandonment. By the Board of Directors of either Whitney
or Holding if (i) all conditions to Closing required by Section 6 hereof have
not been met by or waived by Whitney or Holding by June 30, 1997, or (ii) any
such condition cannot be met by June 30, 1997 and has not been waived by each
party in whose favor such condition inures, or (iii) if the Mergers have not
been consummated by June 30, 1997, provided that the failure to consummate the
transactions contemplated hereby is not caused by the party electing to
terminate pursuant to this clause (iii).
(d) Shareholder Vote. By Whitney if this Agreement or the
Company Merger fails to receive the requisite vote at any meeting of Holding
shareholders called for the purpose of voting thereon, and by Holding if this
Agreement or the Company Merger Agreement fails to receive the requisite vote at
the meeting of Holding shareholders called by its Board of Directors for the
purpose of voting thereon.
(e) Holding Recommendation. By Whitney if the Board of
Directors of Holding (A) shall withdraw, modify or change its recommendation to
its shareholders of this Agreement or the Mergers or shall have resolved to do
any of the foregoing; (B) shall have recommended to the shareholders of Holding
(or in the case of (iii) approved) any of the following (being referred to
herein as an "Acquisition Transaction") (i) any merger, consolidation, share
exchange, business combination or other similar transaction (other than the
transactions contemplated by this Agreement); (ii) any sale, lease, transfer or
other disposition of all or substantially all of the assets of any member of
Holding's consolidated group; or (iii) any acquisition, by any person or group,
of the beneficial ownership of 15% or more of any class of Holding capital
stock; or (C) shall have made any announcement of any agreement to do any of the
foregoing.
(f) Acquisition Transaction. By Holding in the event Holding
receives a written offer with respect to an Acquisition Transaction and the
Board of Directors of Holding determines in good faith, after consultation with
its financial advisors and counsel, that such Acquisition Transaction is more
favorable to Holding's shareholders than the transactions contemplated by this
Agreement.
7.02. Effect of Termination; Survival. Upon termination of this
Agreement pursuant to this Section 7, the Merger Agreements shall also
terminate, and this Agreement and the Merger Agreements shall be void and of no
effect, and there shall be no liability by reason of this Agreement or the
Merger Agreements, or the termination thereof, on the part of any party or their
respective directors, officers, employees, agents or shareholders except for any
liability of a party hereto arising out of (i) an intentional breach of any
representation, warranty or covenant in this Agreement prior to the date of
termination, except if such breach was required by law or by any bank or bank
holding company regulatory authority or (ii) a breach of any covenant that
survives pursuant to the following sentence. The following provisions shall
survive any termination of this Agreement: the last sentence of subsection 5.01;
subsections 5.14(b) and (c); subsection 7.02; subsection 7.03 and Section 8.
7.03. Termination Fee. If this Agreement is terminated pursuant to
7.01(f), then Holding shall pay or cause to be paid to Whitney upon demand a fee
of $2,000,000 (the "Termination Fee"), payable in same day funds.
Section 8. Miscellaneous
8.01. Notices. Any notice, communication, request, reply, advice or
disclosure (hereinafter severally and collectively "notice") required or
permitted to be given or made by any party to another in connection with this
Agreement or the Merger Agreements or the transactions herein or therein
contemplated must be in writing and may be given or served by depositing the
same in the United States mail, postage prepaid and registered or certified with
return receipt requested, or by delivering the same to the address of the person
or entity to be notified, or by sending the same by a national commercial
courier service (such as Airborne Express, Federal Express, Emery Air Freight,
Network Courier, Purolator or the like) for next-day delivery provided such
delivery is confirmed in writing by such courier. Notice deposited in the mail
in the manner hereinabove described shall be effective 48 hours after such
deposit, and notice delivered in person or by commercial courier shall be
effective at the time of delivery. A party delivering notice shall endeavor to
obtain a receipt therefor. For purposes of notice, the addresses of the parties
shall, until changed as hereinafter provided, be as follows:
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<PAGE>
If to Whitney or Whitney's Bank:
Whitney Holding Corporation
Attention: Mr. William Marks
228 St. Charles Avenue
New Orleans, Louisiana 70130
With copies to:
Joseph S. Schwertz, Jr., Esq.
Whitney National Bank
Legal Department
228 St. Charles Avenue
New Orleans, Louisiana 70130
If to Holding or Bank:
First National Bankshares, Inc.
Attention: Mr. Jerome H. Mire
7910 Main Street
Houma, Louisiana 70360
With copies to:
Sidney C. Sundbery, Esq.
Duval, Funderburk, Sundbery & Lovell
101 Wilson Avenue
Houma, Louisiana 70364
Paul M. Haygood, Esq.
Correro Fishman Haygood Phelps
Weiss Walsmley & Casteix, L.L.P.
Place St. Charles, 47th Floor
201 St. Charles Avenue
New Orleans, Louisiana 70170-4700
8.02. Waiver. The failure by any party to enforce any of its rights
hereunder shall not be deemed to be a waiver of such rights, unless such waiver
is an express written waiver which has been signed by the waiving party. Waiver
of any one breach shall not be deemed to be a waiver of any other breach of the
same or any other provision hereof.
8.03. Expenses. Except as otherwise provided herein, regardless of
whether the Mergers are consummated, all expenses incurred in connection with
this Agreement and the Merger Agreements and the transactions contemplated
hereby and thereby shall be borne by the party incurring them.
8.04. Headings. The headings in this Agreement have been included
solely for reference and shall not be considered in the interpretation or
construction of this Agreement.
8.05. Annexes, Exhibits and Schedules. The annexes, exhibits and
schedules to this Agreement are incorporated herein by this reference and
expressly made a part hereof.
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<PAGE>
8.06. Integrated Agreement. This Agreement, the Merger Agreements, the
exhibits and schedules hereto and all other documents and instruments delivered
in accordance with the terms hereof constitute the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof,
and there are no agreements, understanding, restrictions, representations or
warranties among the parties other than those set forth herein or therein, all
prior agreements and understandings being superseded hereby.
8.07. Choice of Law. The validity of this Agreement and the Merger
Agreements, the construction of their terms and the determination of the rights
and duties of the parties hereto in accordance therewith shall be governed by
and construed in accordance with the laws of the United States and those of the
State of Louisiana applicable to contracts made and to be performed wholly
within such State.
8.08. Parties in Interest. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that this Agreement may not be transferred or assigned by any member of
either consolidated group without the prior written consent of the other parties
hereto, including any transfer or assignment by operation of law. Nothing in
this Agreement or the Merger Agreements is intended or shall be construed to
confer upon or to give any person other than the parties hereto any rights or
remedies under or by reason of this Agreement or the Merger Agreements, except
as expressly provided for herein and therein.
8.09. Amendment. The parties may, by mutual agreement of their
respective Boards of Directors, amend, modify or supplement this Agreement, the
Merger Agreements, or any exhibit or schedule of any of them, in such manner as
may be agreed upon by the parties in writing, at any time before or after
approval of this Agreement and the Merger Agreements and the transactions
contemplated hereby and thereby by the shareholders of the parties hereto. This
Agreement and any exhibit or schedule to this Agreement may be amended at any
time and, as amended, restated by the chief executive officers of the respective
parties (or their respective designees) without the necessity for approval by
their respective Boards of Directors or shareholders, to correct typographical
errors or to change erroneous references or cross references, or in any other
manner which is not material to the substance of the transactions contemplated
hereby.
8.10. Counterparts. This Agreement may be executed by the parties in
any number of counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute one and the same document.
8.11. Non-Survival of Representations and Warranties; Covenants. None
of the representations and warranties in this Agreement or in any instrument
delivered pursuant hereto shall survive the Effective Time. Each party hereby
agrees that its sole right and remedy with respect to any breach of a
representation or warranty or covenant by the other party shall be not to close
the transactions described herein if such breach results in the nonsatisfaction
of a condition set forth in Section 6 hereof; provided, however, that the
foregoing shall not be deemed to be a waiver of any claim for an intentional
breach of a representation, warranty or covenant or for fraud except if such
breach is required by law or by any bank or bank holding company regulatory
authority; it being understood that a disclosure in any closing certificate
provided in accordance with subparagraph (a) of subsection 6.02 or subparagraph
(a) of subsection 6.03 hereof concerning an inaccuracy of a representation or
warranty shall not of itself be deemed to be an intentional breach of such
representation or warranty. The covenants of the parties set forth herein
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<PAGE>
shall survive the Effective Time in accordance with their terms and, in the
absence of a specified survival term, for the applicable statute of limitations.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
WHITNEY HOLDING CORPORATION
BY: /s/ William L. Marks
-------------------------
William L. Marks
ITS: Chairman and CEO
WHITNEY NATIONAL BANK
BY: /s/ William L. Marks
-------------------------
William L. Marks
ITS: Chairman and CEO
FIRST NATIONAL BANKSHARES, INC.
BY: /s/ Jerome H. Mire
-------------------------
Jerome H. Mire
ITS: President and CEO
FIRST NATIONAL BANK OF HOUMA
BY: /s/ Jerome H. Mire
-------------------------
Jerome H. Mire
ITS: President and CEO
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<PAGE>
Exhibit 1.01(a) to
Agreement and Plan of Merger
JOINT AGREEMENT OF MERGER
OF
FIRST NATIONAL BANKSHARES, INC.
AND
WHITNEY HOLDING CORPORATION
THIS JOINT AGREEMENT OF MERGER (this "Joint Agreement") is dated as of
the ______ day of ______________________, 199__, between First National
Bankshares, Inc., a Louisiana corporation ("Holding"), and Whitney Holding
Corporation, a Louisiana corporation ("Whitney"); and is entered into pursuant
to the provisions of Sections 111, et seq. of the Louisiana Business Corporation
Law ("LBCL").
WHEREAS, as required by law, at least a majority of the members of the
respective Boards of Directors of Holding and Whitney (collectively, the
"Merging Corporations") deem it advisable that Holding be merged with and into
Whitney (the "Company Merger"), as provided in this Joint Agreement and in the
Agreement and Plan of Merger dated October ___, 1996 (the "Plan") among Whitney,
Holding, Whitney National Bank (which is a wholly-owned subsidiary of Whitney),
and First National Bank of Houma ("Bank") (which is a wholly-owned subsidiary of
Holding), which sets forth, among other things, certain representations,
warranties, covenants and conditions relating to the Company Merger; and
WHEREAS, as required by law, at least a majority of the members of the
respective Boards of Directors of the Merging Corporations wish to enter into
this Joint Agreement and submit it to the shareholders of Holding for approval
in the manner required by law and, subject to such approval and to such other
approvals as may be required, to effect the Company Merger, all in accordance
with the provisions of this Joint Agreement.
NOW THEREFORE, in consideration of the mutual benefits to be derived
from this Joint Agreement and the Company Merger, the parties hereto agree as
follows:
1. THE MERGER
In accordance with the applicable provisions of the LBCL, Holding shall
be merged with and into Whitney; the separate existence of Holding shall cease;
and Whitney shall be the corporation surviving the Company Merger.
2. EFFECTIVENESS OF THE COMPANY MERGER
2.1. Effective Time of the Company Merger. The Company Merger shall
become effective at 12:01 p.m. on the date on which this Joint Agreement, having
been executed and acknowledged in the manner required by law, is filed in the
office of the Secretary of State of Louisiana (the "Effective Time").
2.2. Effect of the Company Merger. At the Effective Time, (i) the
separate existence of Holding shall cease and Holding shall be merged with and
into Whitney; (ii) Whitney shall continue to possess all of the rights,
privileges and franchises possessed by it and shall, at the Effective Time,
become vested with and possess all rights, privileges and franchises possessed
by Holding; (iii) Whitney shall be responsible for all of the liabilities and
obligations of Holding in the same manner as if Whitney had itself incurred such
liabilities or obligations, and the Company Merger shall not
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affect or impair the rights of the creditors or of any persons dealing
with the Merging Corporations; and (iv) the Company Merger shall, from and
after the Effective Time, have all the effects provided by applicable Louisiana
law.
2.3. Articles of Incorporation.
(a) The Articles of Incorporation of Whitney, as in effect
immediately prior to the Effective Time, shall not be amended by reason of the
Company Merger and shall be the Articles of Incorporation of Whitney as the
surviving corporation in the Company Merger until thereafter changed or amended
as provided therein or by applicable law.
(b) The Bylaws of Whitney, as in effect immediately prior to
the Effective Time, shall not be amended by reason of the Company Merger and
shall be the Bylaws of Whitney as the surviving corporation in the Company
Merger until thereafter changed or amended as provided therein or by applicable
law.
2.4. Directors and Officers. The directors and officers of Whitney at
the Effective Time shall be the directors and officers of Whitney as the
surviving corporation in the Company Merger until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
2.5. Additional Actions. If, at any time after the Effective Time,
Whitney shall consider or be advised that any further assignments or assurances
in law or any other acts are necessary or desirable (a) to vest, perfect or
confirm, of record or otherwise, in Whitney, title to or the possession of any
property or right of Holding acquired or to be acquired by reason of, or as a
result of, the Company Merger, or (b) otherwise to carry out the purposes of
this Joint Agreement, Holding and its proper officers and directors shall be
deemed to have granted to Whitney an irrevocable power of attorney to execute
and deliver all such proper deeds, assignments and assurances in law and to do
all acts necessary or proper to vest, perfect or confirm title to and possession
of such property or rights in Whitney and otherwise to carry out the purposes of
this Joint Agreement; and the proper officers and directors of Whitney are fully
authorized in the name of Holding to take any and all such action.
3. METHOD OF CARRYING COMPANY MERGER INTO EFFECT
The shareholders of Whitney are not required to approve this Joint
Agreement under applicable provisions of the LBCL; however, this Joint Agreement
shall be submitted to the shareholders of Holding for their approval. If such
approval is given, then the fact of such approval shall be certified hereon by
the Secretary of Holding. This Joint Agreement, so approved and certified,
shall, as soon as is practicable, be signed and acknowledged by the President or
Vice President of each of the Merging Corporations. As soon as may be
practicable thereafter and after the approval of all applicable regulatory
authorities and the expiration of all applicable waiting periods, this Joint
Agreement, so certified, signed and acknowledged, shall be delivered to the
Secretary of State of Louisiana for filing in the manner required by law and
shall be effective at the Effective Time; and thereafter, as soon as
practicable, a copy of the Certificate of Merger issued by the Secretary of
State of Louisiana, and certified by him to be a true copy, shall be filed for
record in the Office of the Recorder of Mortgages of the parishes in which the
Merging Corporations have their respective registered offices and in the Office
of the Recorder of Conveyances of each parish in which Holding has immovable
property.
4. CONVERSION OF SHARES
4.1. Conversion. Subject to the provisions of this Section 4, at the
Effective Time, by virtue of the Company Merger and without any action on the
part of the holders thereof, the shares of Holding common stock, par value $2.50
per share ("Holding Common Stock") shall be converted as follows:
(a) Exchange Ratio. Except for shares of Holding Common Stock
held by Holding as treasury shares (which shall by reason of the Company Merger
be cancelled), and subject to the provisions of Section 4.1(b) relating to
fractional shares, each issued and outstanding share of Holding Common Stock
shall be converted into and become that number of shares of Whitney common
stock, no par value ("Whitney Common Stock"), that is equal to
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<PAGE>
the quotient (the "Exchange Ratio") obtained by dividing the Maximum Deliverable
Amount (as hereinafter defined) by the total number of issued and outstanding
shares (not treasury shares) of Holding Common Stock at the Effective Time.
(i) Maximum Deliverable Amount. The term "Maximum
Deliverable Amount" means the quotient obtained by dividing $41,000,000 by the
Average Market Price (as defined below).
(ii) Average Market Price. The "Average Market Price"
shall be the average of the closing per share trading prices of Whitney Common
Stock (adjusted appropriately for any stock split, stock dividend,
recapitalization, reclassification or similar transaction which is effected,
or for which a record date occurs) on the twenty (20) trading days preceding the
fifth trading day immediately prior to the Effective Time, as reported in
the Wall Street Journal (corrected for typographical errors); provided, however,
that if the Average Market Price as calculated above is less than $28.50, the
Average Market Price for purposes of this Section 4.1(a) shall be $28.50, and
if the Average Market Price as calculated above is greater than $36.50, the
Average Market Price for purposes of this Section 4.1(a) shall be $36.50.
(b) Fractional Shares. In lieu of the issuance of fractional
shares of Whitney Common Stock, each shareholder of Holding, upon surrender of
his or her certificate that immediately prior to the Effective Time represented
Holding Common Stock, other than shares of Holding Common Stock held by Holding
as treasury shares (which shall by reason of the Company Merger be cancelled),
shall receive a cash payment (without interest) equal to the fair market value
at the Effective Time of any fraction of a share of Whitney Common Stock to
which such holder would be entitled but for this provision. For purposes of
calculating such payment, the fair market value of a fraction of a share of
Whitney Common Stock at the Effective Time shall be such fraction multiplied by
the Average Market Price.
(c) Exchange of Certificates. After the Effective Time, each
holder of an outstanding certificate or certificates theretofore representing a
share or shares of Holding Common Stock, other than shares of Holding Common
Stock held by Holding as treasury shares (which shall by reason of the Company
Merger be cancelled), upon surrender thereof to the exchange agent selected by
Whitney (the "Exchange Agent"), together with duly executed transmittal
materials provided pursuant to Section 4.1(e) or upon compliance by the holder
or holders thereof with the procedures of the Exchange Agent with respect to
lost, stolen or destroyed certificates, shall be entitled to receive in exchange
therefor any payment due in lieu of fractional shares and a certificate or
certificates representing the number of whole shares of Whitney Common Stock
into which such holder's shares of Holding Common Stock were converted. Until so
surrendered, each outstanding Holding stock certificate shall be deemed for all
purposes, other than as provided below with respect to the payment of dividends
or other distributions (if any) in respect of Whitney Common Stock, to represent
the number of whole shares of Whitney Common Stock into which such holder's
Holding Common Stock shall have been converted. Whitney may, at its option,
refuse to pay any dividend or other distribution to holders of unsurrendered
Holding stock certificates until surrendered; provided, however, that upon the
surrender and exchange of any Holding stock certificates there shall be paid, to
the extent not previously paid, to the record holders of the Whitney stock
certificates issued in exchange therefor the amount, without interest, of
accumulated dividends and distributions, if any, which have become payable with
respect to the number of whole shares of Whitney Common Stock into which the
shares of Holding Common Stock theretofore represented by such certificates
shall have been exchanged.
(d) Deposit. Promptly following the Effective Time, Whitney
shall deposit or cause to be deposited with the Exchange Agent (i) certificates
representing the shares of Whitney Common Stock and (ii) the cash in lieu of
fractional shares to be issued and paid, as the case may be, in exchange for
outstanding shares of Holding Common Stock pursuant to this Section 4.
(e) Transmittal Materials. Promptly after the Effective Time,
Whitney shall send or cause to be sent to each former shareholder of record of
Holding at the Effective Time transmittal materials for use in exchanging
certificates of Holding Common Stock for certificates of Whitney Common Stock.
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4.2. Closing Transfer Books. At the Effective Time, the stock transfer
books of Holding shall be closed and no transfer of shares of Holding Common
Stock shall be made thereafter. All shares of Whitney Common Stock issued, and
any fractional share payments paid upon surrender for exchange of certificates
representing shares of Holding Common Stock in accordance with this Joint
Agreement shall be deemed to have been issued in full satisfaction of all rights
pertaining to the shares of Holding Common Stock theretofore represented by such
certificates.
5. MISCELLANEOUS
5.1. Termination. Prior to the Effective Time, this Joint Agreement
may be terminated, and the Company Merger abandoned, as set forth in the Plan.
5.2. Headings. The descriptive headings of the sections of this Joint
Agreement are inserted for convenience only and do not constitute a part hereof
for any other purpose.
5.3. Modifications, Amendments and Waivers. At any time prior to the
Effective Time (notwithstanding any shareholder approval that may have already
been given), the parties hereto may, to the extent permitted by and as provided
in the Plan, modify, amend or supplement any term or provision of this Joint
Agreement.
5.4. Governing Law. This Joint Agreement shall be governed by the laws
of the State of Louisiana (regardless of the laws that might be applicable under
principles of conflicts of law) as to all matters, including, but not limited
to, matters of validity, construction, effect and performance.
IN WITNESS WHEREOF, this Joint Agreement has been executed by a
majority of the respective Directors of each of the Merging Corporations, as of
the day and year first above written.
[Signature lines omitted]
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<PAGE>
Exhibit 1.01(b) to
Agreement and Plan of Merger
AGREEMENT OF MERGER
OF
FIRST NATIONAL BANK OF HOUMA
INTO
WHITNEY NATIONAL BANK
THIS AGREEMENT OF MERGER (this "Agreement") is made and entered into as
of this ______ day of ______________________, 199___, between First Louisiana
National Bank of Houma, a national banking association domiciled at Houma,
Louisiana ("Bank"), and Whitney National Bank, a national banking association
domiciled at New Orleans, Louisiana ("WNB" or the "Receiving Association").
WHEREAS, at least a majority of the members of the respective Boards of
Directors of Bank and WNB (collectively called the "Merging Associations") deem
it advisable that Bank be merged with and into WNB (the "Bank Merger"), as
provided in this Agreement and in the Agreement and Plan of Merger dated October
____, 1996 (the "Plan"), among the Merging Associations, Whitney Holding
Corporation, a Louisiana corporation ("Whitney") of which WNB is a wholly-owned
subsidiary, and First National Bankshares, Inc., a Louisiana corporation
("Holding"), of which Bank is wholly-owned subsidiary, which sets forth, among
other things, certain representations, warranties, covenants and conditions
relating to the Bank Merger; and
WHEREAS, at least a majority of the members of the respective Boards of
Directors of the Merging Associations wish to enter into this Agreement and
submit it to the respective shareholders of the Merging Associations for
approval in the manner required by law and, subject to said approval and to
approval by the Comptroller of the Currency of the United States (the
"Comptroller") being duly given and to such other approvals as may be required
by law, to effect the Bank Merger, all in accordance with the provisions of this
Agreement.
NOW THEREFORE, in consideration of the mutual benefits to be derived
from this Agreement and the Bank Merger, the parties hereto agree as follows:
1. The Bank Merger. At the Effective Time (as defined in Section 2
hereof), Bank and WNB shall be merged with and into WNB under the Articles of
Association of WNB, as amended, existing Charter No. 14977, pursuant to the
provisions of, and with the effect provided in, 12 U.S.C. Section 215a. At the
Effective Time, WNB, the Receiving Association, shall continue to be a national
banking association, and its business shall continue to be conducted at its main
office in New Orleans, Louisiana, and at its legally established branches
(including, without limitation, the legally established offices from which Bank
conducted business immediately prior to the Effective Time). The Articles of
Association of WNB shall not be altered or amended by virtue of the Bank Merger,
and the incumbency of the directors and officers of WNB shall not be affected by
the Bank Merger nor shall any person succeed to such positions by virtue of the
Bank Merger.
2. Effective Time. The Bank Merger shall become effective at the time
specified or permitted by the Comptroller in a certificate or other written
record issued by the Office of the Comptroller of the Currency (the "Effective
Time").
3. Cancellation of Capital Stock of Bank. At the Effective Time, by
virtue of the Bank Merger, all shares of the capital stock of Bank, other than
any such shares as to which dissenters' rights shall exist at the Effective
Time, shall be cancelled.
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4. Capital Stock of the Receiving Association. The shares of the
capital stock of WNB, the Receiving Association, issued and outstanding
immediately prior to the Effective Time shall, at the Effective Time, continue
to be issued and outstanding, and no additional shares of WNB shall be issued as
a result of the Bank Merger. Therefore, at the Effective Time, the amount of
capital stock of WNB, the Receiving Association, shall be $3,358,400.00, divided
into 134,336 shares of common stock, par value $25.00 per share.
5. Assets and Liabilities of the Merging Associations. At the Effective
Time, the corporate existence of each of the Merging Associations shall be
merged into and continued in WNB, the Receiving Association, and such Receiving
Association shall be deemed to be the same corporation as each bank or banking
association participating in the Bank Merger. All rights, franchises, and
interests of the individual Merging Associations in and to every type of
property (real, personal and mixed) and choses in action shall be transferred to
and vested in the Receiving Association by virtue of the Bank Merger without any
deed or other transfer. The Receiving Association, upon the Bank Merger and
without any order or other action on the part of any court or otherwise, shall
hold and enjoy all rights of property, franchises, and interests, including
appointments, designations, and nominations, and all other rights and interests
as trustee, executor, administrator, registrar of stocks and bonds, guardian of
estates, and in every other fiduciary capacity, in the same manner and to the
same extent as such rights, franchises, and interests were held or enjoyed by
any one of the Merging Associations at the time of the Bank Merger, subject to
the conditions specified in 12 U.S.C. Section 215a(f). The Receiving Association
shall, from and after the Effective Time, be liable for all liabilities of the
Merging Associations.
6. Shareholder Approval; Conditions; Filing. This Agreement shall be
submitted to the shareholders of the Merging Associations for ratification and
confirmation in accordance with applicable provisions of law. The obligations of
the Merging Associations to effect the Bank Merger shall be subject to all the
terms and conditions of the Plan. If the shareholders of the Merging
Associations ratify and confirm this Agreement, then the fact of such approval
shall be certified hereon by the Secretary of each of the Merging Associations
and this Agreement, so approved and certified, shall, as soon as is practicable,
be signed and acknowledged by the President or Chairman of the Board of each of
them. As soon as may be practicable thereafter, this Agreement, so certified,
signed and acknowledged, shall be delivered to the Comptroller for filing in the
manner required by law.
7. Miscellaneous. This Agreement may, at any time prior to the
Effective Time, be amended or terminated as provided in the Plan. This Agreement
may be executed in counterparts, each of which shall be deemed to constitute an
original. This Agreement shall be governed and interpreted in accordance with
federal law and the applicable laws of the State of Louisiana. This Agreement
may be assigned only to the extent that the party seeking to assign it is
permitted to assign its interests in the Plan, and subject to the same effect as
any such assignment. The headings in this Agreement are inserted for convenience
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement. Capitalized terms used herein and not
otherwise defined have the meanings given to them in the Plan.
IN WITNESS WHEREOF, this Agreement has been executed by a majority of
the directors of each of the Merging Associations, as of the day and year first
above written.
[Signature lines omitted]
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<PAGE>
Exhibit 6.02(g) to
Agreement and Plan of Merger
[date]
Mr. William L. Marks
Chairman and CEO
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, Louisiana 70130
Dear Mr. Marks:
In consideration of the benefits I will receive as a shareholder of
First National Bankshares, Inc. ("Holding") from the Agreement and Plan of
Merger dated October ____, 1996 (the "Agreement") between Holding, First
National Bank of Houma ("Bank"), Whitney National Bank, and Whitney Holding
Corporation ("Whitney"), I agree as follows:
[If a director or executive officer of Holding: I agree to vote all
shares of Holding common stock ("Holding stock") over which I have or share
voting power in favor of approving the Agreement and the mergers to be effected
thereby, unless Whitney is then in breach or default in any material respect as
regards any covenant, agreement, representation or warranty as to it contained
in the Agreement; provided, however, that nothing in this sentence shall be
deemed to require me to vote any shares of Holding stock over which I have or
share voting power solely in a fiduciary capacity on behalf of any person other
than Holding or Bank, if I determine, in good faith after consultation with and
receipt of an opinion of counsel, that such a vote would cause a breach of my
fiduciary duties to such other person.]
I [further] agree that, prior to the Effective Date, as that term is
set forth in the Agreement, I will not, without the prior consent of Whitney,
transfer any of the shares of Holding stock over which I have or share the power
to sell, transfer, pledge, or otherwise alienate or encumber (the "Power of
Disposition"), except by operation of law, by will, or under the laws of descent
and distribution or, in the case of any transfer more than 30 days before the
Effective Date, where the transferee agrees in writing to be bound by the terms
of this letter.
I also acknowledge that Whitney intends to account for the acquisition
of Holding and Bank as a pooling of interests. I understand that my transfer of
any shares of Holding stock within 30 days of the Effective Date or of any
Whitney common stock ("Whitney stock") that I receive in exchange for Holding
stock prior to Whitney's publication of financial results covering at least 30
days of its operations following the Effective Date may impair this accounting
treatment. Therefore, I agree that, without the prior consent of Whitney, I will
not, except by operation of law, by will, or under the laws of descent and
distribution, sell or otherwise transfer (a) within 30 days of the Effective
Date, any shares of Holding stock over which I have Power of Disposition or (b)
the Whitney stock which I receive in exchange for such Holding stock until
Whitney has published financial results covering at least 30 days of its
combined operations with Holding following the Effective Date.
I authorize Boatmen's Trust Company (Trust Department), St. Louis,
Missouri, to hold the certificates representing the shares of Whitney stock into
which my shares of Holding stock will be converted (but not any dividends paid
with respect thereto) until the date that I am free to trade those shares in
accordance with the foregoing paragraph.
I certify that the following are all of the shares of Holding stock of
which I hold the Power of Disposition.
[List number of shares and how held - e.g., "street name," I/N/O
- ------ etc.] ----
---
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<PAGE>
I am aware that Whitney intends to treat the merger of Holding into
Whitney (the "Merger") in a manner consistent with Section 368 of the Internal
Revenue Code. I acknowledge that applicable tax regulations require "continuity
of interest" in order for the Merger to qualify under Section 368. I have no
present plan or intention to dispose of any Whitney stock that I will receive in
the Merger.
I also understand the resale or other disposition of Whitney stock that
I receive may be governed by Rule 145 of the SEC under the Securities Act of
1933, as amended (the "Securities Act"), which Rule has been explained to me. I
agree not to sell any of the Whitney stock to be received by me in violation of
the Securities Act or the rules and regulations thereunder.
This letter shall constitute an irrevocable agreement of the
undersigned and may be revoked only upon the mutual agreement of the parties.
The agreements contained in this letter will terminate upon any termination of
the Agreement under Section 7 of the Agreement or upon any material amendment of
the Agreement.
Sincerely,
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<PAGE>
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (the "Amendment")
is made as of December 10, 1996 between Whitney Holding Corporation, a Louisiana
corporation ("Whitney"), and Whitney National Bank, a national banking
association ("Whitney Bank"), on the one hand, and First National Bankshares,
Inc., a Louisiana corporation ("Holding"), and First National Bank of Houma, a
national banking association ("Bank"), on the other hand. Capitalized terms used
in this Amendment and not otherwise defined shall have the meanings given to
them in the Plan of Merger (as defined below).
RECITALS
WHEREAS, Whitney, Whitney Bank, Holding and Bank are parties to that
certain Agreement and Plan of Merger dated October 11, 1996 (the "Plan of
Merger"); and
WHEREAS, Whitney, Whitney Bank, Holding and Bank desire to amend the
Plan of Merger pursuant to Section 8.09 thereof to correct certain erroneous
references as set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Whitney, Whitney Bank, Holding and Bank, intending to be legally
bound, hereby agree as follows:
1. Section 5.20(c) of the Plan of Merger is hereby amended by deleting
the phrase "with respect to acts or omissions occurring prior to or at the
respective effective times" appearing in the first clause of such subsection and
inserting in lieu thereof the phrase "with respect to acts or omissions
occurring prior to or at the Effective Time."
2. Sections 6.02 and 6.03 of the Plan of Merger are hereby amended by
deleting from Section 6.03 the paragraph currently identified as Section
6.03(e), which paragraph is entitled "No Registration Rights," and by inserting
that paragraph, without change, as a new subsection (i) of Section 6.02 of the
Plan of Merger.
3. Except to the extent specifically amended herein, the Plan of Merger
shall remain in full force and effect in accordance with its terms, provisions,
covenants and agreements.
4. This Amendment may be executed by the parties in any number of
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
WHITNEY HOLDING CORPORATION FIRST NATIONAL BANKSHARES, INC.
By: /s/ William L. Marks By: /s/ Jerome H. Mire
---------------------------- ----------------------------
William L. Marks, Jerome H. Mire,
Chairman and CEO President and CEO
WHITNEY NATIONAL BANK FIRST NATIONAL BANK OF HOUMA
By: /s/ William L. Marks By: /s/ Jerome H. Mire
---------------------------- ----------------------------
William L. Marks, Jerome H. Mire
Chairman and CEO President and CEO
A-38
<PAGE>
APPENDIX B
Fairness Opinion of The Robinson-Humphrey Company, Inc.
<PAGE>
[The Robinson-Humphrey Company, Inc. Letterhead]
January 16, 1997
Board of Directors
First National Bankshares, Inc.
600 East Main Street
Houma, Louisiana 70360-3406
Gentlemen:
In connection with the proposed acquisition of First National Bankshares,
Inc. ("FNH") by Whitney Holding Corporation ("WTNY") (the "Merger"), you have
asked us to render an opinion as to whether the financial terms of the Merger,
as provided in the Agreement and Plan of Merger dated as of October 11,
1996, as amended, among such parties (the "Merger Agreement"), are fair,
from a financial point of view, to the stockholders of FNH. Under the terms of
the Merger, holders of all outstanding shares of FNH stock will receive
consideration equal to $20.321 of WTNY Common Stock shares for each FNH share
held, provided that the Average Market Price, which shall be the average of the
closing per share trading prices of WTNY Common Stock on the twenty trading days
preceding the fifth trading day immediately prior to the Effective Time, on the
Nasdaq Stock Market of the Common Stock of WTNY is within the range specified in
the Merger Agreement ($28.50 per share - $36.50 per share). If the average
closing price of WTNY is below $28.50 then the exchange ratio will be 0.713;
however, if the average closing price of WTNY is above $36.50 then the exchange
ratio will be 0.557.
Our firm, as part of its investment banking business, is frequently
involved in the valuation of securities as related to public underwritings,
private placements, mergers, acquisitions, recapitalizations and other purposes.
In connection with our study for rendering this opinion, we have reviewed
the Merger Agreement, FNH's financial results for fiscal years 1991 through 1995
as well as the first three quarters of 1996 and certain documents and
information we deem relevant to our analysis. We have also held discussions
with senior management of FNH for the purpose of reviewing the historical
and current operations of, and outlook for FNH, industry trends, the terms of
the proposed Merger, and related matters.
We have also studied published financial data concerning certain other
publicly traded banks which we deem comparable to FNH as well as certain
financial data relating to acquisitions of other banks that we deem relevant or
comparable. In addition, we have reviewed
B-1
<PAGE>
Board of Directors
First National Bankshares, Inc.
Page 2
other published information, performed certain financial analyses and considered
other factors and information which we deem relevant.
We have reviewed similar information and data relating to WTNY including
its historical financial statements, for fiscal years 1991 through 1995 as well
as the first three quarters of 1996.
In rendering this opinion, we have relied upon the accuracy of the Merger
Agreement, the financial information listed above, and other information
furnished to us by WTNY and FNH. We have not separately verified this
information nor have we made an independent evaluation of any of the assets or
liabilities of WTNY or FNH.
Based upon the foregoing and upon current market and economic conditions,
we are of the opinion that, from a financial point of view, the consideration as
provided in the Agreement and Plan of Merger is fair to the stockholders of FNH.
Very truly yours,
/s/ The Robinson-Humphrey Company, Inc.
THE ROBINSON-HUMPHREY COMPANY, INC.
B-2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. 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.
Whitney's Articles of Incorporation and By-laws provide for
indemnification for directors, officers, employees and agents or former
directors, officers, employees and agents of Whitney to the full extent
permitted by Louisiana law.
Whitney 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 Whitney
pursuant to the foregoing provision or otherwise, Whitney 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 21. Exhibits and Financial Statement Schedules
(a) Exhibits
The following Exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
2 The Plan of Merger (included in the Registration
Statement as Appendix A and incorporated herein by
reference).
5 Opinion of Milling, Benson, Woodward, Hillyer,
Pierson & Miller, L.L.P.
8 Form of opinion of Arthur Andersen LLP as to certain
tax matters.
23.1 Consent of Arthur Andersen LLP dated January 14,
1997*.
23.2 Consent of Deloitte & Touche LLP dated January 14,
1997*.
23.3 Consent of The Robinson-Humphrey Company, Inc. dated
January 13, 1997*.
23.4 Consent of Milling, Benson, Woodward, Hillyer,
Pierson & Miller, L.L.P., included in Exhibit 5.
II-1
<PAGE>
24 Powers of Attorney of directors of Whitney Holding
Corporation (contained on page S-1 of the
Registration Statement).
99.1 Form of Proxy of First National Bankshares, Inc.*
99.2 Form of ESOP Voting Instruction Card.*
-----------------------------
*Filed with this Amendment. All other listed exhibits have been
filed previously.
(b) Financial Statement Schedules
None
II-2
<PAGE>
Item 22. Undertakings
The undersigned Registrant hereby undertakes as follows:
(1) To respond to requests for information that is incorporated by
reference into the Prospectus pursuant to Items 4, 10(b), 11, or 13 of Form S-4,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
Registration Statement through the date of responding to the request.
(2) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement when it became
effective.
(3) That for purposes of determining any liability under the Securities
Act of 1933 (the "Securities Act"), each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (the "Exchange Act") (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement related 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.
(4) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the Registrant undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items of
the applicable form.
(5) That every prospectus (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to the
Registration Statement and will not be used until such amendment is effective,
and that, for purposes of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant, 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 Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities 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 has duly caused this Amendment No. 1 to its 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 14th day of January, 1997.
WHITNEY HOLDING CORPORATION
By: /s/ William L. Marks
-------------------------------
William L. Marks
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
/s/ William L. Marks
- ------------------------ Chairman of the Board January 14, 1997
William L. Marks and Chief Executive Officer
/s/ R. King Milling
- ------------------------ Director and President January 14, 1997
R. King Milling
- ------------------------ Executive Vice President and January 14, 1997
Edward B. Grimball Chief Financial Officer
(Principal Financial Officer
and Principal Accounting Officer)
*
- ---------------------------- Director January 14, 1997
Harry J. Blumenthal, Jr.
*
- ---------------------------- Director January 14, 1997
Joel B. Bullard, Jr.
*
- ---------------------------- Director January 14, 1997
James M. Cain
- ---------------------------- Director January ___, 1997
Angus R. Cooper, II
*
- ---------------------------- Director January 14, 1997
Robert H. Crosby, Jr.
*
- ---------------------------- Director January 14, 1997
Richard B. Crowell
S-1
<PAGE>
*
- ---------------------------- Director January 14, 1997
Camille A. Cutrone
- ---------------------------- Director January ___, 1997
William A. Hines
*
- ---------------------------- Director January 14, 1997
Robert E. Howson
*
- ---------------------------- Director January 14, 1997
John J. Kelly
*
- ---------------------------- Director January 14, 1997
E. James Kock, Jr.
*
- ---------------------------- Director January 14, 1997
Alfred S. Lippman
*
- ---------------------------- Director January 14, 1997
John G. Phillips
*
- ----------------------------- Director January 14, 1997
John K. Roberts, Jr.
*
- ----------------------------- Director January 14, 1997
W. P. Snyder III
*
- ----------------------------- Director January 14, 1997
Carroll W. Suggs
*
- ----------------------------- Director January 14, 1997
Warren K. Watters
*By: /s/ R. King Milling
-----------------------------
R. King Milling
Agent and Attorney-in-Fact
S-2
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description Page
2 The Plan of Merger (included in the Registration Statement
as Appendix A and incorporated herein by reference).
5 Opinion of Milling, Benson, Woodward, Hillyer, Pierson &
Miller, L.L.P.
8 Form of opinion of Arthur Andersen LLP as to certain tax
matters.
23.1 Consent of Arthur Andersen LLP dated January 14, 1997*.
23.2 Consent of Deloitte & Touche LLP dated January 14, 1997*.
23.3 Consent of The Robinson-Humphrey Company, Inc. dated
January 13, 1997*.
23.4 Consent of Milling, Benson, Woodward, Hillyer, Pierson &
Miller, L.L.P., included in Exhibit 5.
24 Powers of Attorney of directors of Whitney Holding
Corporation (contained on page S-1 of the Registration
Statement).
99.1 Form of Proxy of First National Bankshares, Inc.*
99.2 Form of ESOP Voting Instruction Card.*
- ----------------------
*Filed with this Amendment.All other listed exhibits have been filed previously.
<PAGE>
EXHIBIT 23.1
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 16, 1996
(except with respect to the matter discussed in the first paragraph of Note 16,
as to which the date is March 8, 1996) included in Whitney Holding Corporation's
Form 10-K for the year ended December 31, 1995, and of our report dated March 8,
1996 included in Whitney Holding Corporation's Form 10-K/A for the year ended
December 31, 1995 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
New Orleans, Louisiana
January 14, 1997
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Whitney Holding Corporation on Form S-4/A (Amendment No.1) of our report
dated February 3, 1996, incorporated by reference from the Annual Report on
Form 10-K of First National Bankshares, Inc. for the year ended December 31,
1995 and to the reference to us under the heading "Experts" in the Proxy
Statement-Prospectus, which is a part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
New Orleans, Louisiana
January 14, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF THE ROBINSON-HUMPHREY COMPANY, INC.
We hereby consent to the inclusion in this Registration Statement on Form S-4 of
Whitney Holding Corporation of the form of our letter to the Board of Directors
of First National Bankshares, Inc., included as Appendix B to the Proxy
Statement-Prospectus that is part of the Registration Statement, and to the
references to such letter and to our firm in such Proxy Statement-Prospectus. In
giving such consent we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933
or the rules and regulations of the Securities and Exchange Commission
thereunder.
The Robinson-Humphrey Company, Inc.
By: /s/ Gerard J. O'Meara, Jr.
----------------------------
Gerard J. O'Meara, Jr.
Managing Director
January 13, 1997
<PAGE>
EXHIBIT 99.1
FIRST NATIONAL BANKSHARES, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby (a) acknowledges receipt of the Notice of
Special Meeting of Shareholders of First National Bankshares, Inc. (the
"Company') to be held on Tuesday, February 18, 1997, and the Proxy
Statement-Prospectus in connection therewith, (b) constitutes and appoints
Roland J. Champagne, Thomas H. Givens, M.D. and Samuel G. deGeneres, or any one
of them acting in the absence of the others, with full power of substitution,
the lawful attorneys and proxies of the undersigned, (c) authorizes the proxies
to attend and represent the undersigned at the Special Meeting of Shareholders
of the Company, and at all adjournments and postponements thereof, and to vote
as specified below all of the shares of the Company's common stock registered in
the name of the undersigned that the undersigned would be entitled to vote if
personally present, and (d) revokes any proxies heretofore given.
1. Proposal to approve an Agreement and Plan of Merger dated
October 11, 1996, as amended, between Whitney Holding Corporation
("Whitney"), Whitney National Bank, the Company, and First National
Bank of Houma ("FNBH") and the related Joint Agreement of Merger
between the Company and Whitney (collectively, the "Plan of Merger")
pursuant to which, among other things: (a) the Company would merge into
Whitney and each outstanding share of common stock of the Company would
be converted into shares of Whitney common stock as determined in
accordance with the terms of the Plan of Merger and (b) FNBH would, in
due course, merge into Whitney National Bank, all as more fully
described in the accompanying Proxy Statement-Prospectus.
___ FOR ___ AGAINST ___ ABSTAIN
2. To transact such other business as may properly come
before the Special Meeting of Shareholders or any adjournment or
postponement thereof.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED
HEREIN BY THE UNDERSIGNED STOCKHOLDER, AND IN THE DISCRETION OF THE PERSONS
NAMED AS PROXIES ON ALL OTHER MATTERS WHICH MAY PROPERLY COME BEFORE THE SPECIAL
MEETING OR ANY ADJOURNMENT OR POSTPONEMENT THEREOF. IF NO DIRECTION IS MADE,
THIS PROXY WILL BE VOTED IN FAVOR OF PROPOSAL 1.
Dated: _______________, 1997
----------------------------------
(Signature of Shareholder)
----------------------------------
(Signature of Joint Shareholder)
(Your signature on this proxy should correspond with the name appearing on your
stock certificate. When signing as Executor, Administrator, Trustee, Guardian,
Attorney, etc. please indicate your full title. If stock is held jointly, each
joint owner must sign.)
PLEASE DATE, SIGN, AND MAIL THIS PROXY IN THE ENCLOSED ENVELOPE.
NO POSTAGE REQUIRED IF MAILED IN THE UNITED STATES.
<PAGE>
EXHIBIT 99.2
FIRST NATIONAL BANK OF HOUMA
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
As a participant in the First National Bank of Houma Employee Stock
Ownership Plan and Trust (the "ESOP"), you are entitled to vote shares of First
National Bankshares, Inc. common stock, $2.50 par value, allocated to you under
the Plan in connection with the proposed merger of First National Bankshares,
Inc. into Whitney Holding Corporation. The enclosed Proxy Statement-Prospectus
describes the terms and conditions of the proposed merger.
To vote, simply complete the voting instructions (below) and return
them to HRC at the address indicated below. Your instructions will be held in
confidence. If your instructions are not received on or before the later of
January 31, 1997 or five days after your receipt of this notice, shares of
common stock allocated to you will not be voted.
- --------------------------------------------------------------------------------
VOTING INSTRUCTIONS
THESE INSTRUCTIONS ARE SOLICITED BY THE TRUSTEE
OF THE FIRST NATIONAL BANK OF HOUMA EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
The undersigned, a participant in the First National Bank of Houma
Employee Stock Ownership Plan and Trust, hereby instructs the trustee to vote at
a special meeting of the shareholders of First National Bankshares, Inc. ("FNB")
to be held on Tuesday, February 18, 1997, and at any and all adjournments
and postponements thereof, as follows:
1. Proposal to approve an Agreement and Plan of Merger dated
October 11, 1996, as amended, between Whitney Holding Corporation
("Whitney"), Whitney National Bank, FNB, and First National Bank of
Houma ("FNBH") and the related Joint Agreement of Merger of FNB and
Whitney (collectively, the "Plan of Merger") pursuant to which, among
other things: (a) FNB would merge into Whitney and each outstanding
share of common stock of FNB would be converted into shares of Whitney
common stock as determined in accordance with the terms of the Plan of
Merger and (b) FNBH would, in due course, merge into Whitney National
Bank, all as more fully described in the accompanying Proxy
Statement-Prospectus.
___ FOR ___ AGAINST ___ ABSTAIN
THESE INSTRUCTIONS WILL BE VOTED AS SPECIFIED. IF INSTRUCTIONS ARE NOT RECEIVED
ON OR BEFORE THE DATE SPECIFIED ABOVE, SHARES SUBJECT TO THESE INSTRUCTIONS WILL
NOT BE VOTED.
- -------------------------------- -----------------------------------------
Please print name Signature
-----------------------------------------
Date
PLEASE MARK, SIGN, DATE AND RETURN THESE
INSTRUCTIONS PROMPTLY, USING THE ENCLOSED ENVELOPE TO:
HRC
415 Lafayette Street, Suite 200
New Orleans, Louisiana 70130
Attention: FNBH Proxy
<PAGE>
