<PAGE> 1
As filed with the Securities and Exchange Commission on November 22, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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WHITNEY HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
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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>
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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 offices)
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Joseph S. Schwertz, Jr., Esq.
Corporate Secretary Copies to: Copies to:
Whitney Holding Corporation Patrick J. Butler, Jr., Esq. Robert E. L. Gilpin, Esq.
228 St. Charles Ave. - Room 626 Phelps Dunbar, L.L.P. Kaufman & Rothfeder, P.C.
New Orleans, LA 70130 365 Canal Street, Suite 2000 2740 Zelda Road
(504) 586-3474 New Orleans, LA 70130 Montgomery, AL 36706
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED
SALE OF THE SECURITIES TO THE PUBLIC:
Upon submission of the Plan of Merger described in this registration statement
for the vote of stockholders of Prattville Financial Services Corporation.
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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. 9
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
-------------------------------------- ------------------------- ---------------------- --------------------- -------------------
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Common stock, no par value 1,029,427 shares $23.29 $23,973,000 $6,329
-------------------------------------- ------------------------- ---------------------- --------------------- -------------------
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(1) Based on the average of the high and low prices per share on November 17,
2000 of Whitney Holding Corporation common stock, no par value, as reported
on the Nasdaq Stock Market. There is also registered hereby a currently
indeterminate number of additional shares that may be issued in the
transaction described herein under certain circumstances.
(2) Calculated in accordance with Rule 457(f)(2) based on the book value as of
September 30, 2000 of the shares of common stock of Prattville Financial
Services Corporation to be canceled in the merger described herein, and
included herein solely for purposes of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PRATTVILLE FINANCIAL SERVICES CORPORATION
124 W. Main Street
Prattville, Alabama 36067
_______________, 2000
Dear Shareholder:
We cordially invite you to attend a Special Meeting of Stockholders of
Prattville Financial Services Corporation, to be held at the main office of the
Bank of Prattville, 124 W. Main Street, Prattville, Alabama on _____________,
2001 at ________ local time.
The purpose of the meeting is to consider and vote on a merger
agreement pursuant to which (a) Prattville would merge into Whitney Holding
Corporation and each outstanding share of common stock of Prattville would be
converted into shares of Whitney common stock, no par value, on terms stated in
the merger agreement, and (b) Bank of Prattville would, in due course, merge
into Whitney National Bank. After the merger, Prattville stockholders will
beneficially own approximately _____% of the outstanding stock of Whitney, one
of the largest Louisiana-based bank holding companies. Whitney's common stock is
quoted on the Nasdaq Stock Market, which will provide you with the liquidity of
owning publicly traded securities. Approval of the merger agreement requires the
affirmative vote of a majority of the outstanding shares of Prattville common
stock.
The board of directors has unanimously approved the merger agreement as
being in Prattville's stockholders' best interests. Alex Sheshunoff & Co.
Investment Banking, an investment banking firm experienced in the valuation of
banking institutions, has delivered its opinion to your board that the
consideration in the merger is fair from a financial point of view. For the
merger to be completed, Prattville and Whitney must also receive an opinion that
the merger will qualify as a tax-free reorganization for federal income tax
purposes.
This proxy statement-prospectus contains additional information about
the merger agreement and the proposed merger. We encourage you to read this
entire document carefully. Copies of the documents about Whitney incorporated by
reference are available as indicated under the caption "Information About
Whitney - Incorporation of Certain Documents by Reference."
YOUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR APPROVAL OF THE
MERGER AGREEMENT AND URGES YOU TO SIGN AND DATE THE ENCLOSED PROXY AND RETURN IT
PROMPTLY IN THE ENCLOSED ENVELOPE TO MAKE SURE THAT YOUR VOTE IS COUNTED. Of
course, if you attend the meeting, you may vote in person, even if you have
returned your proxy.
Very truly yours,
J. B. Striplin
Chairman of the Board and
Chief Executive Officer
YOU SHOULD NOT RETURN YOUR PRATTVILLE STOCK CERTIFICATES AT THIS TIME.
YOU WILL RECEIVE INSTRUCTIONS AT A LATER DATE REGARDING THE EXCHANGE OF YOUR
PRATTVILLE STOCK CERTIFICATES.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
REGULATORS HAVE APPROVED OR DISAPPROVED OF THE WHITNEY COMMON STOCK TO BE ISSUED
IN THE MERGER OR DETERMINED IF THIS PROXY STATEMENT-PROSPECTUS IS ACCURATE OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS PROXY STATEMENT-PROSPECTUS IS DATED _____________________, 2000
<PAGE> 3
PRATTVILLE FINANCIAL SERVICES CORPORATION
124 W. Main Street
Prattville, Alabama 36067
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD _________, _______________, 2001
To the Holders of Common Stock of Prattville Financial Services Corporation:
NOTICE IS HEREBY GIVEN that a Special Meeting of Stockholders of
Prattville Financial Services Corporation will be held at the main office of its
wholly-owned subsidiary, Bank of Prattville, 124 W. Main Street, Prattville,
Alabama 36067 on __________, __________, 2001 at ____ _.m., local time, for the
following purposes:
1. To consider and vote on an Agreement and Plan of Merger dated
August 8, 2000 among Whitney Holding Corporation, Whitney
National Bank, Prattville Financial Services Corporation and
Bank of Prattville, a copy of which is attached to the
accompanying proxy statement-prospectus as Appendix A and
incorporated herein by reference. If the merger agreement is
approved, Prattville Financial Services Corporation will be
merged into Whitney Holding Corporation and, in due course,
Bank of Prattville will be merged into Whitney National Bank.
2. To transact such other business as may properly come before
the meeting or any adjournments or postponements thereof.
Only stockholders of record at the close of business on ___________,
2000, are entitled to notice of and to vote at the meeting or any adjournments
or postponements thereof. Dissenting stockholders who comply with the procedural
requirements of Section 262 of the Delaware General Corporation Law will be
entitled to receive payment of the fair value of their shares in accordance with
Delaware law.
You are cordially invited to attend the meeting in person. Whether or
not you plan to attend the meeting, we urge you to complete, date and sign the
enclosed proxy and to return it promptly.
By order of the Board of Directors
-----------------------------------
Secretary
Prattville, Alabama
___________, 2000
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IMPORTANT
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 POSTAGE-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 PRATTVILLE'S SECRETARY, OR BY FILING A
PROPERLY EXECUTED PROXY OF A LATER DATE WITH PRATTVILLE'S SECRETARY, AT OR
BEFORE THE MEETING.
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<PAGE> 4
TABLE OF CONTENTS
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Page
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QUESTIONS AND ANSWERS ABOUT THE MERGER..........................................................................-1-
SUMMARY.........................................................................................................-2-
Information About the Stockholders' Meeting............................................................-2-
What You Will Receive in the Merger....................................................................-2-
Management and Operations after the Merger.............................................................-3-
Your Board of Directors Recommends Stockholder Approval ...............................................-3-
Basis for the Terms of the Merger......................................................................-3-
Opinion of Prattville's Financial Advisor..............................................................-4-
Quorum and Vote Required at the Meeting................................................................-4-
Conditions to the Merger and Amendment or Termination of the Merger Agreement..........................-4-
Interests of Certain Persons in the Merger that May be Different from Yours............................-5-
Employee Benefits of Prattville Employees after the Merger.............................................-5-
Material Tax Consequences of the Merger................................................................-6-
Appraisal Rights You Will Have as a Result of the Merger...............................................-6-
Differences in Rights of Prattville Stockholders after the Merger......................................-6-
Accounting Treatment of the Merger.....................................................................-6-
Selected Financial Information of Whitney..............................................................-6-
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS.................................................................-8-
THE PARTIES TO THE MERGER ......................................................................................-8-
Whitney Holding Corporation ...........................................................................-8-
Prattville Financial Services Corporation..............................................................-9-
MEETING INFORMATION............................................................................................-10-
Solicitation and Revocation of Proxies ...............................................................-10-
Record Date; Quorum and Vote Required ................................................................-11-
Recommendation of the Board of Directors of Prattville................................................-11-
PROPOSED MERGER ...............................................................................................-12-
General ..............................................................................................-12-
Background of the Merger..............................................................................-12-
Reasons for the Merger................................................................................-12-
TERMS OF THE MERGER ...........................................................................................-20-
General ..............................................................................................-20-
Consideration to be Paid to Prattville Stockholders...................................................-20-
Surrender and Exchange of Stock Certificates..........................................................-22-
Payment of Expenses Relating to the Merger............................................................-23-
Conditions to the Merger; Waiver of Those Conditions .................................................-24-
Regulatory and Other Required Approvals...............................................................-25-
Business of Prattville Pending the Merger.............................................................-25-
Termination of the Merger Agreement; Termination Fee..................................................-26-
Representations and Warranties in the Merger Agreement................................................-27-
Certain Differences in Rights of Stockholders.........................................................-28-
Interests of Certain Persons in the Merger............................................................-30-
Material Tax Consequences of the Merger...............................................................-32-
Accounting Treatment of the Merger ...................................................................-33-
RIGHTS OF DISSENTING STOCKHOLDERS (APPRAISAL RIGHTS)...........................................................-34-
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INFORMATION ABOUT PRATTVILLE...................................................................................-36-
Description of Business...............................................................................-36-
Competition...........................................................................................-36-
Supervision and Regulation............................................................................-36-
Seasonality of Business and Customers.................................................................-36-
Employees.............................................................................................-37-
Properties............................................................................................-37-
Legal Proceedings.....................................................................................-38-
Market Price and Dividends............................................................................-39-
Security Ownership of Principal Stockholders and Management of Prattville.............................-40-
INFORMATION ABOUT WHITNEY......................................................................................-42-
General...............................................................................................-42-
Market Prices of and Dividends Declared on Whitney Common Stock.......................................-43-
Incorporation of Certain Documents by Reference ......................................................-44-
OTHER MATTERS..................................................................................................-45-
LEGAL MATTERS .................................................................................................-45-
EXPERTS........................................................................................................-45-
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QUESTIONS AND ANSWERS ABOUT THE MERGER
Q. WHAT AM I BEING ASKED TO VOTE UPON?
A. You are being asked to approve the merger agreement, which provides for the
merger of Prattville Financial Services Corporation into Whitney Holding
Corporation.
Q. WHAT SHOULD I DO NOW?
A. Just indicate on your proxy card how you want to vote, sign the card and mail
it in the enclosed envelope as soon as possible, so that your shares will be
represented at the special meeting.
NOTE: If you sign and send in your proxy card and do not indicate how
you want to vote, your proxy will be voted in favor of the proposal to approve
and adopt the merger agreement. Failure to either sign and send in your proxy
card or attend and vote at the meeting will have the same effect as voting your
shares against the merger.
Q. IF MY SHARES ARE HELD IN "STREET NAME" BY MY BROKER, WILL MY BROKER
VOTE MY SHARES FOR ME?
A. Your broker will vote your shares of stock on the merger agreement only if
you provide instructions on how to vote. You should instruct your broker on how
to vote your shares, following the directions your broker provides. If you do
not provide instructions to your broker, your shares will not be voted at the
special meeting, which will have the same effect as voting your shares against
the merger.
Q. SHOULD I SEND IN MY PRATTVILLE STOCK CERTIFICATES NOW?
A. No. If the merger is completed, we will send all Prattville stockholders
written instructions for exchanging Prattville common stock certificates for
Whitney common stock certificates.
WHO CAN HELP ANSWER YOUR QUESTIONS
If you would like additional copies of this document, or if you would
like to ask any questions about the merger, you should contact: Albert C.
Striplin, Secretary/Treasurer, Prattville Financial Services Corporation, 124 W.
Main Street, Prattville, Alabama 36067, telephone (334) 361-3312.
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SUMMARY
We have prepared this summary to assist you, the stockholders of
Prattville Financial Services Corporation, in your review of this proxy
statement-prospectus. It is necessarily general and abbreviated, and it is not
intended to be a complete explanation of all of the matters covered in this
proxy statement-prospectus. To understand the merger and the issuance of shares
of Whitney common stock, please see the more complete and detailed information
in the sections that follow this summary, as well as the appendices and the
documents incorporated herein by reference. We urge you to read all of these
documents in their entirety prior to voting at the special meeting of Prattville
Financial Services Corporation.
INFORMATION ABOUT THE STOCKHOLDERS' MEETING
A special meeting of the stockholders of Prattville will be held on
_____________, 2001 at _______ __.m., local time. The meeting will be held at
the main office of the Bank of Prattville, 124 W. Main Street, Prattville,
Alabama.
WHAT YOU WILL RECEIVE IN THE MERGER
At the meeting, you, the stockholders of Prattville, will vote on the
merger agreement. If you approve the merger agreement and the other conditions
to completing the merger are satisfied, we expect to complete the merger in the
first quarter of 2001. Prattville stockholders, other than those who exercise
and perfect appraisal rights under Delaware law, will receive for each share of
Prattville common stock a number of shares of Whitney common stock determined by
reference to the total consideration that Whitney will pay in the merger.
In the merger, Whitney will issue to Prattville's stockholders a total
number of shares of Whitney common stock equal to:
o the sum of $38,700,000 plus the amount of certain
Prattville earnings arising after March 31, 2000,
plus the tax-effected gain that Prattville recognizes
on the sale of its Prattmont Branch, if any; divided
by
o the average closing price of Whitney common stock for
the 25 trading days preceding the fifth trading day
before the effective date of the merger.
Each outstanding share of Prattville common stock will be converted into a
number of shares of Whitney common stock equal to the total number of shares
issuable to all Prattville stockholders, divided by the number of shares of
Prattville common stock outstanding on the effective date of the merger.
The number of Whitney shares you receive in the merger will depend on
the number of Prattville shares you own, the average closing price of Whitney
common stock, the amount of certain Prattville earnings after March 31, 2000 and
Prattville's tax-effected gain on the sale of the Prattmont Branch, if any.
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Since the number of Whitney shares to be issued in the merger is based
on the average price of Whitney common stock during a period prior to closing,
the actual value of the shares of Whitney common stock that Prattville's
stockholders will receive may be more or less than the average market price of
those shares calculated in accordance with the merger agreement. Prattville
stockholders who would otherwise receive a fraction of a share of Whitney common
stock will receive cash instead of that fractional share.
MANAGEMENT AND OPERATIONS AFTER THE MERGER
o Prattville will cease to exist after the merger.
o The business of Prattville will be conducted through Whitney
after the merger.
o Bank of Prattville will merge into Whitney National Bank,
although Whitney has the right to delay the bank merger for up
to one year.
o No current Prattville directors will be appointed as directors
of Whitney.
YOUR BOARD OF DIRECTORS RECOMMENDS STOCKHOLDER APPROVAL
The board of directors of Prattville has unanimously approved the
merger agreement and believes that the merger is in the best interests of
Prattville's stockholders. The board recommends that you vote FOR approval of
the merger agreement.
BASIS FOR THE TERMS OF THE MERGER
Prattville's directors considered a number of factors in approving the
terms of the merger, including:
o the financial terms of the merger;
o information concerning the financial condition, results of
operations and prospects of Whitney and Prattville;
o the professional evaluation by Alex Sheshunoff & Co.
Investment Banking, L.P. of the economic fairness of the price
to be paid to Prattville's stockholders;
o the anticipated tax-free nature of the merger to Prattville's
stockholders for federal income tax purposes;
o the financial terms of other recent business combinations in
the banking industry; and
o the merger's potential effect on constituencies that
Prattville serves, including its customers, employees and
community.
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OPINION OF PRATTVILLE'S FINANCIAL ADVISOR
Alex Sheshunoff & Co. Investment Banking, L.P., an investment banking
and financial advisory firm, has given an opinion to the Prattville board of
directors that the terms of the merger are fair, from a financial point of view,
to Prattville's stockholders. The opinion is based on and subject to the
procedures, matters and limitations described in the opinion and other matters
that Alex Sheshunoff & Co. considered relevant. The fairness opinion is attached
to this proxy statement-prospectus as Appendix B. We urge all Prattville
stockholders to read the entire opinion, which describes the procedures
followed, matters considered and limitations on the reviews undertaken by Alex
Sheshunoff & Co.
QUORUM AND VOTE REQUIRED AT THE MEETING
Stockholders who own Prattville common stock at the close of business
on ____________, 2000 will be entitled to vote at the meeting. A majority of the
issued and outstanding shares of Prattville common stock must be present in
person or by proxy at the meeting in order for a quorum to be present. If a
quorum is not present at the meeting, the meeting will be adjourned, and no vote
will be taken until and unless a quorum is present.
Approval of the merger agreement requires the affirmative vote of a
majority of the outstanding shares of Prattville common stock.
As of the record date for the meeting, directors and executive officers
of Prattville have or share voting or dispositive power over 414,193 shares (or
approximately 42%) of the issued and outstanding Prattville common stock. These
individuals have agreed with Whitney that they will vote the stock over which
they have voting power in favor of the merger agreement.
CONDITIONS TO THE MERGER AND AMENDMENT OR TERMINATION OF THE MERGER AGREEMENT
The following conditions must be met in order for the merger to be
consummated:
o Prattville's stockholders must approve of the merger agreement
by the required vote;
o the Federal Reserve Board must approve the merger without
imposing conditions to the approval that are unacceptable to
Whitney (that approval was received on ____________, 2000);
o the merger must qualify as a pooling of interests;
o the merger must qualify as a tax-free reorganization;
o Alex Sheshunoff & Co. must confirm its fairness opinion to
Prattville as of the date of the meeting;
o Prattville must transfer certain branch properties to Bank of
Prattville;
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o Whitney must not have entered into an agreement that would
result in Whitney no longer being an independent public
company; and
o additional conditions customary in transactions of this type.
The merger may not be consummated until at least 15 days after approval
of the merger by the Federal Reserve Board. Whitney and Prattville now
contemplate that they will complete the merger in the first quarter of 2001, if
all approvals are received.
Nearly all of the conditions to consummation of the merger may be
waived at any time by the party for whose benefit they were created, except that
the conditions regarding stockholder and regulatory approvals, the continued
effectiveness of Whitney's registration statement and the fairness opinion
confirmation may not be waived. Also, the parties may amend or supplement the
merger agreement at any time by written agreement. The parties' boards of
directors must approve any material amendments. Any material change to the
merger agreement after the meeting may require a re-solicitation of votes from
Prattville stockholders. In addition, the merger agreement may be terminated,
either before or after stockholder approval, under certain circumstances.
INTERESTS OF CERTAIN PERSONS IN THE MERGER THAT MAY BE DIFFERENT FROM YOURS
The executive officers and directors of Prattville have interests in
the merger that are in addition to their interests as stockholders of
Prattville. These interests include, among others:
o the continued employment of the executive officers by Whitney
after the merger;
o the continuation of employee benefits;
o provisions in the merger agreement relating to director and
officer liability insurance and the indemnification of
officers and directors of Prattville for certain liabilities;
and
o Prattville's Severance Compensation Agreements with certain
executives that provide for payments to such executives under
certain circumstances if their employment is terminated
following the merger.
EMPLOYEE BENEFITS OF PRATTVILLE EMPLOYEES AFTER THE MERGER
Whitney has agreed to offer to all former Prattville employees who
become Whitney employees the same employee benefits as those offered by Whitney
to its employees. Whitney will also give Prattville employees full credit for
their years of service with Prattville, for both eligibility and vesting, except
that prior service credit will not be considered in determining future benefits
under Whitney's or Whitney National Bank's defined benefit pension plan.
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MATERIAL TAX CONSEQUENCES OF THE MERGER
Prattville stockholders generally will not recognize gain or loss for
federal income tax purposes on the exchange of their Prattville shares for the
shares of Whitney common stock they receive in the merger. Prattville
stockholders will, however, be taxed on cash received instead of any fractional
share. Further, any Prattville stockholder who perfects appraisal rights under
Delaware law, as described in the next section, will be taxed on cash received
for his or her Prattville common stock.
Tax laws are complex, and the tax consequences of the merger may vary
depending upon your individual circumstances or tax status. For these reasons,
we recommend that you consult your tax advisor concerning the federal and any
applicable state, local or other tax consequences of the merger to you.
APPRAISAL RIGHTS YOU WILL HAVE AS A RESULT OF THE MERGER
If the merger is completed, those Prattville stockholders who do not
vote for the merger and who follow certain procedures described in this proxy
statement-prospectus will be entitled to an appraisal of the value of their
shares under Delaware law. If you perfect your appraisal rights, you will not
receive Whitney common stock but will be entitled to receive the fair value of
your shares of stock in cash as determined in accordance with Delaware law.
Appendix C includes the relevant provisions of Delaware law regarding these
appraisal rights.
DIFFERENCES IN RIGHTS OF PRATTVILLE STOCKHOLDERS AFTER THE MERGER
Prattville stockholders who receive shares of Whitney common stock in
the merger will become Whitney shareholders. Their rights as stockholders after
the merger will be governed by Louisiana law and by Whitney's articles of
incorporation and bylaws. The rights of Whitney shareholders are different in
certain respects from the rights of Prattville stockholders. Some of the
principal differences are described in this proxy statement-prospectus.
ACCOUNTING TREATMENT OF THE MERGER
The parties intend the merger to be treated as a pooling of interests
for financial accounting purposes. A number of things could prevent the merger
from qualifying for this accounting treatment. For example, if the cash Whitney
would be required to pay in the merger, including cash paid to stockholders who
exercise appraisal rights, were more than 10% of the value of the Prattville
stock to be exchanged, then the merger would not qualify as a pooling of
interests. In such a case, Whitney may abandon the merger.
SELECTED FINANCIAL INFORMATION OF WHITNEY
The following table sets forth certain consolidated financial
information of Whitney. This information is based on, and should be read in
conjunction with, the consolidated financial statements and related notes of
Whitney contained in its annual report on Form 10-K for the year ended December
31, 1999 and in its quarterly report on Form 10-Q for the nine-month period
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<PAGE> 12
ended September 30, 2000, which are incorporated by reference in this proxy
statement-prospectus. Information for the nine-month periods ended September 30,
2000 and 1999 is unaudited. The results for the nine-month period ended
September 30, 2000 do not necessarily indicate the results you can expect for
the entire year.
<TABLE>
<CAPTION>
Nine months ended
September 30 Years ended December 31
----------------------- ------------------------------------------------------------
2000 1999 1999 1998 1997 1996 1995
---------- ---------- ---------- ---------- ---------- ---------- ----------
(In thousands, except per share data, unaudited)
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AVERAGE BALANCE SHEET DATA
Total assets $5,758,950 $5,220,918 $5,243,473 $4,857,088 $4,630,995 $4,438,672 $4,117,755
Earning assets 5,281,189 4,768,416 4,793,793 4,429,631 4,229,210 4,043,543 3,742,192
Loans 3,871,305 3,316,213 3,377,691 2,972,664 2,609,275 2,174,400 1,745,433
Investment in securities 1,388,706 1,385,363 1,363,456 1,301,163 1,569,143 1,798,811 1,901,027
Deposits 4,501,665 4,204,431 4,206,688 3,930,221 3,679,832 3,569,118 3,453,728
Shareholders' equity 572,601 562,192 560,261 548,806 503,325 465,347 417,417
INCOME STATEMENT DATA
Interest income $ 305,377 $ 258,782 $ 349,813 $ 336,113 $ 323,571 $ 301,586 $ 278,988
Interest expense 121,485 91,583 124,065 122,981 122,245 117,368 102,071
Net interest income 183,892 167,199 225,748 213,132 201,326 184,218 176,917
Net interest income
(TE) 188,189 171,437 231,485 217,858 206,220 189,075 181,122
Provision for possible loan
losses 7,500 4,250 6,000 73 (2,120) (3,626) (8,616)
Non-interest income (exclusive
of securities transactions) 52,694 48,560 66,582 58,438 52,827 43,570 39,693
Securities transactions -- -- -- 839 12 2 50
Non-interest expense 154,448 143,919 194,082 194,499 170,245 160,695 146,920
Net income 50,254 45,731 62,420 52,679 57,178 47,811 53,646
KEY RATIOS
Return on average assets 1.17% 1.17% 1.19% 1.08% 1.23% 1.08% 1.30%
Return on average shareholders'
equity 11.72% 10.88% 11.14% 9.60% 11.36% 10.27% 12.85%
Net interest margin (TE) 4.76% 4.80% 4.83% 4.92% 4.88% 4.68% 4.84%
Average loans to average
deposits 86.00% 78.87% 80.29% 75.64% 70.91% 60.92% 50.54%
Efficiency ratio 64.12% 65.42% 65.12% 70.40% 65.72% 69.07% 66.54%
Reserve for possible loan
losses to loans 1.29% 1.25% 1.21% 1.23% 1.55% 1.77% 2.23%
Non-performing assets to loans
plus foreclosed and surplus
property .55% .37% .46% .49% .51% .69% 1.12%
Average shareholders' equity to
average assets 9.94% 10.77% 10.68% 11.30% 10.87% 10.48% 10.14%
Shareholders' equity to total
assets 9.72% 10.46% 10.21% 10.76% 10.97% 10.33% 10.29%
COMMON SHARE DATA Earnings per share:
Basic $ 2.22 $ 1.98 $ 2.71 $ 2.26 $ 2.48 $ 2.10 $ 2.39
Diluted $ 2.21 $ 1.97 $ 2.70 $ 2.24 $ 2.46 $ 2.09 $ 2.37
Dividends:
Cash dividends per share $ 1.08 $ .99 $ 1.32 $ 1.20 $ 1.12 $ .97 $ .82
Dividend payout ratio 48.68% 49.93% 48.50% 52.57% 42.63% 40.54% 27.79%
Book value per share $ 25.89 $ 24.27 $ 24.68 $ 23.98 $ 22.72 $ 21.14 $ 19.91
</TABLE>
Note: Certain information for prior periods has been reclassified to conform
to current classifications.
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement-prospectus includes "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. These
forward-looking statements, which we make in good faith, are based on numerous
assumptions, certain of which may be referred to specifically in connection with
our forward-looking statements. Some of the more important assumptions include:
o expectations about overall economic strength and the
performance of the economies in our market areas;
o expectations about the movement of interest rates, including
actions that may be taken by the Federal Reserve Board in
response to changing economic conditions;
o reliance on existing or anticipated changes in laws and
regulations affecting the activities of the banking industry
and other financial service providers; and
o expectations regarding the nature and level of competition,
changes in consumer behavior and preferences, and our
respective ability to execute our plans to respond
effectively.
We do not know whether future conditions and events will confirm these
or any of our other assumptions. As a result, there is a risk that our future
results will differ materially from what is stated in or implied by our
forward-looking statements.
Whitney and Prattville have made and will make forward-looking
statements in their written documents and oral presentations. These statements
are based on Whitney's and Prattville's managements' beliefs as well as
assumptions made by and information currently available to Whitney and
Prattville management. Whitney's and Prattville's use, in documents or oral
presentations, of the words "anticipate," "estimate," "expect," "objective,"
"projection," "forecast," "goal" and similar expressions will often, but not
always, identify forward-looking statements.
Whitney and Prattville undertake no obligation to update or revise any
forward-looking statements, whether as a result of differences in actual
results, changes in assumptions or changes in other factors affecting such
statements.
THE PARTIES TO THE MERGER
WHITNEY HOLDING CORPORATION
Whitney Holding Corporation is a Louisiana corporation registered under
the Bank Holding Company Act of 1956, as amended. As of September 30, 2000,
Whitney had total consolidated assets of approximately $6.0 billion, deposits of
approximately $4.6 billion and shareholders' equity of approximately $587
million.
Whitney's principal banking subsidiary is Whitney National Bank.
Whitney National Bank is a national banking association headquartered in New
Orleans, Louisiana. It has been engaged in the general banking business in south
Louisiana since 1883. Whitney currently
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<PAGE> 14
provides banking services through over 120 banking locations in the five-state
Gulf Coast region. These locations stretch from Houston, Texas; across southern
Louisiana and the coastal region of Mississippi; through central and south
Alabama; and into the Florida panhandle. Whitney National Bank also has a
foreign branch on Grand Cayman in the British West Indies.
Whitney's principal executive offices are located at:
228 St. Charles Avenue
New Orleans, Louisiana 70130
Telephone: (504) 586-7117
For additional information about Whitney's business and financial
condition, please refer to "Information About Whitney", including the subsection
titled "Incorporation of Certain Documents by Reference" and the documents
described in that subsection.
PRATTVILLE FINANCIAL SERVICES CORPORATION
Prattville Financial Services Corporation is a Delaware corporation
registered under the Bank Holding Company Act of 1956, as amended. Prattville
owns all of the issued and outstanding shares of stock of Bank of Prattville.
Bank of Prattville is an Alabama state-chartered bank that operates a total of
three banking offices in Prattville and Autaugaville, Alabama. Prattville's
other wholly-owned subsidiary, Key Finance Company of Prattville, Inc., is
engaged in the business of making and serving small (that is, less than $5,000)
loans.
Bank of Prattville has a wholly-owned subsidiary, Key Investment
Services, Inc., which employs a registered representative of a broker-dealer and
offers investment products to customers. Bank of Prattville also owns a 49%
interest in Starke Associates, Inc., an Alabama insurance agency.
As of September 30, 2000, Prattville had total consolidated assets of
approximately $168 million, deposits of approximately $139 million and
stockholders' equity of approximately $24 million.
Prattville's principal executive offices are located at:
124 W. Main Street
Prattville, Alabama 36067
Telephone: (334) 361-3300
Additional information concerning the business and financial condition
of Prattville is included below under the heading "Information About
Prattville."
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<PAGE> 15
MEETING INFORMATION
You have received this proxy statement-prospectus because the board of
directors of Prattville is soliciting your proxy for the special meeting. Each
copy of this proxy statement-prospectus mailed to holders of Prattville common
stock is accompanied by a proxy card for use at the meeting and at any
adjournment of the meeting. Only holders of record of Prattville common stock on
___________, 2000 are entitled to notice of and to vote at the meeting.
At the meeting, stockholders will consider and vote upon:
o the merger agreement; and
o any other matters that are properly brought before the meeting
or any adjournments of the meetings.
IF YOU HAVE NOT ALREADY DONE SO, PLEASE COMPLETE, DATE AND SIGN THE ACCOMPANYING
PROXY CARD AND RETURN IT PROMPTLY IN THE ENCLOSED, POSTAGE PAID ENVELOPE.
SOLICITATION AND REVOCATION OF PROXIES
If you have delivered a proxy for the meeting, you may revoke it any
time before it is voted by:
o attending the meeting and voting in person;
o giving written notice to the Prattville corporate secretary
prior to the date of the meeting revoking your proxy; or
o submitting to the Prattville corporate secretary a signed
proxy card dated later than your initial proxy.
The proxy holders will vote as directed all proxy cards that are
received at or prior to the meeting and that are not subsequently revoked. If
you complete, date and sign your proxy card but do not provide instructions as
to your vote, the proxy holders will vote your shares FOR approval of the merger
agreement. If any other matters are properly presented at the meeting for
consideration, the persons named in the proxy card will have discretionary
authority to vote on those matters. Prattville's board of directors is not aware
of any matter to be presented at the meeting other than the proposal to approve
the merger agreement.
Prattville will bear the cost of soliciting proxies from its
stockholders, except that Whitney will bear all expenses for printing and
mailing this proxy statement-prospectus. Prattville will solicit stockholder
votes by mail, and perhaps by telephone or other means of telecommunication.
Directors, officers and employees of Prattville may also solicit stockholder
votes in person. If these individuals solicit your vote in person, they will
receive no additional compensation for doing so. Prattville will reimburse
brokerage firms and other persons representing beneficial owners of shares for
their reasonable expenses in forwarding solicitation material to those
beneficial owners.
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<PAGE> 16
PRATTVILLE STOCKHOLDERS SHOULD NOT SEND ANY STOCK CERTIFICATES WITH THEIR PROXY
CARDS. IF THE MERGER AGREEMENT IS APPROVED, PRATTVILLE STOCKHOLDERS WILL RECEIVE
INSTRUCTIONS FOR EXCHANGING THEIR STOCK CERTIFICATES AFTER THE MERGER HAS BEEN
COMPLETED.
RECORD DATE; QUORUM AND VOTE REQUIRED
The record date for the meeting is _________, 2000. Prattville
stockholders of record as of the close of business on that day will receive
notice of the meeting and will be able to vote at the meeting. As of
___________, 2000, there were ________ shares of Prattville common stock
outstanding and entitled to vote at the meeting.
The presence, in person or by proxy, of a majority of the shares of
Prattville common stock entitled to vote on the merger agreement is necessary to
constitute a quorum at the meeting. Each share of Prattville common stock
outstanding on ______________, 2000 entitles its holder to one vote on the
approval of the merger agreement and any other proposal that may properly come
before the meeting.
To determine the presence of a quorum at the meeting, Prattville will
count as present at the meeting the shares of Prattville common stock present in
person but not voting and the shares of common stock for which Prattville has
received proxies but with respect to which the holders of such shares have
abstained.
Under Delaware law, and based on the unanimous approval of the merger
by Prattville's board of directors, approval of the merger agreement requires
the affirmative vote of the holders of a majority of all votes entitled to be
cast on the merger agreement. Abstentions and broker non-votes will have the
effect of a vote against the merger at the meeting.
Prattville's board of directors urges stockholders to complete, date
and sign the accompanying proxy and return it promptly in the enclosed,
postage-paid envelope.
As of the record date for the meeting, Prattville directors and
executive officers beneficially owned a total of 414,193 shares, or
approximately 42%, of the outstanding shares of Prattville common stock. These
individuals have agreed with Whitney that they will vote their stock in favor of
the merger agreement.
RECOMMENDATION OF THE BOARD OF DIRECTORS OF PRATTVILLE
The Prattville board of directors has unanimously approved the merger
agreement and believes that the merger is in the best interests of Prattville
and its stockholders. The Prattville board recommends that Prattville's
stockholders vote FOR approval of the merger agreement. In making their
recommendation to stockholders, the Prattville directors considered, among other
things, the fairness opinion of Alex Sheshunoff & Co., which concludes that the
terms of the merger are fair to Prattville's stockholders from a financial point
of view. See "Proposed Merger--Background of the Merger" and "Proposed
Merger--Opinion of Alex Sheshunoff & Co. Investment Banking, L.P." below.
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<PAGE> 17
PROPOSED MERGER
This section of the proxy statement-prospectus describes certain
aspects of the merger. The following description is not intended to include
every aspect of the merger, but rather contains only the significant terms of
the merger. This discussion is qualified in its entirety by reference to the
merger agreement, which is attached as Appendix A to this proxy
statement-prospectus and is incorporated herein by reference. We urge you to
read the entire merger agreement carefully.
GENERAL
If the stockholders of Prattville approve the merger agreement and the
other conditions to the consummation of the merger are satisfied, Prattville
will be merged with and into Whitney. Whitney will exchange shares of Whitney
common stock, plus cash instead of any fractional share, for each outstanding
share of Prattville common stock as to which rights of appraisal have not been
exercised and perfected. Each share of Whitney common stock outstanding
immediately prior to the effective date of the merger will remain outstanding
and unchanged as a result of the merger.
BACKGROUND OF THE MERGER
In October of 1999, Prattville's board of directors retained Alex
Sheshunoff & Co. to act as investment banker/financial advisor to Prattville to
consider a possible sale. Alex Sheshunoff & Co. developed a list of potential
purchasers, prepared an offering memorandum for selected potential purchasers,
received initial indications of interest and managed the initial due diligence
process. On May 23, 2000, Alex Sheshunoff & Co. presented to the board an
indication of interest from Whitney to acquire Prattville, which was the only
one received. The board discussed the tax-free nature of the proposed
transaction, the indications of fair value, and the benefits to the
shareholders, employees and the Prattville community resulting from the proposed
transaction. The board of directors of Prattville on that day authorized its
officers to meet with representatives of Whitney. Subsequently, Prattville began
negotiations with representatives of Whitney for Prattville to merge with
Whitney in a tax-free merger. From May 2000 through August 2000, representatives
of Prattville and Whitney negotiated the merger agreement and conducted
appropriate due diligence.
After a thorough discussion and consideration of the factors discussed
below under "Reasons for the Merger," on August 8, 2000 the Prattville board
unanimously approved the merger agreement and authorized the execution of the
merger agreement, which was signed on the same date.
REASONS FOR THE MERGER
General
The financial and other terms of the merger agreement resulted from
arm's-length negotiations between Whitney and Prattville representatives. The
Whitney and Prattville boards of directors also considered many factors in
determining the consideration Prattville stockholders would receive in the
merger. Those factors included:
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<PAGE> 18
o the comparative financial condition, results of
operations, current business and future prospects of
Whitney, Whitney National Bank, Prattville and Bank
of Prattville;
o the market price and historical earnings per share of
Whitney common stock and Prattville common stock; and
o the desirability of combining the financial and
managerial resources of Whitney National Bank and
Bank of Prattville to further pursue consumer and
commercial banking business in the market Prattville
serves.
Whitney
Whitney's business strategy includes expansion in central Alabama to
enhance Whitney's presence in the Montgomery and Greenville areas. Whitney's
management identified Prattville as an institution that fit well within this
strategy. Prattville's locations in the Prattville, Alabama area would allow
Whitney to enter the Autauga County, Alabama market, which is one of the fastest
growing markets in Alabama.
In deciding to pursue an acquisition of Prattville, Whitney's
management, board of directors and the executive committee of Whitney's board of
directors noted, among other things, the following:
o Bank of Prattville's deposit base and branch network
in Autauga County, Alabama;
o Prattville's capitalization and asset quality; and
o the desirability of the merger over expansion through
de-novo branching.
Prattville
Prattville's board of directors believes that the terms of the merger
agreement, which are the product of arms-length negotiations between Whitney and
Prattville, are in the best interests of Prattville and its stockholders. In the
course of reaching its determination, Prattville's board consulted with legal
counsel with respect to its legal duties, the terms of the merger agreement and
the issues related thereto. The board also consulted with Alex Sheshunoff & Co.
with respect to the financial aspects and fairness of the transaction and with
senior management regarding, among other things, operational matters.
More specifically, in reaching its determination to approve the merger
agreement, Prattville's board considered a number of factors, including:
o the current condition and growth prospects of
Prattville, its historical results of operations and
its prospective results of operations if it were to
remain independent;
o the current operating environment, including, but not
limited to, the mergers and increasing competition in
the banking and financial services industries, the
prospect for further changes in these industries and
the
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<PAGE> 19
importance of being able to capitalize on developing
opportunities in these industries;
o the presentation of Alex Sheshunoff & Co. and the
fact that Alex Sheshunoff & Co. would render an
opinion that the consideration to be received in the
merger by Prattville's stockholders was fair to such
stockholders from a financial point of view;
o the fact that the merger will be a tax-free exchange
to Prattville's stockholders for federal income tax
purposes;
o the liquidity that the merger would provide to
Prattville's stockholders because Whitney's common
stock is listed on the Nasdaq Stock Market;
o the detailed financial analyses and other information
with respect to Prattville and Whitney, discussed by
Alex Sheshunoff & Co. In this regard, the latest
publicly-available financial and other information of
Whitney was analyzed, including a comparison to
publicly-available financial and other information
about similar institutions;
o the potential increase in the dividend yield that
Prattville's stockholders would receive;
o the long-term prospects for the value of Prattville
common stock without the merger compared to the
prospects for such value following the merger with
Whitney in light of the facts summarized above and
the current economic and financial environment,
including, but not limited to, other possible
strategic alternatives for Prattville, and the belief
of the Prattville board and management that the
merger offered the best transaction available to
Prattville and its stockholders; and
o the general impact of the merger on the
constituencies that Prattville serves, including its
customers, employees and community.
After deliberating with respect to the merger and the other
transactions contemplated by the merger agreement, considering, among other
things, the matters discussed above and the opinion of Alex Sheshunoff & Co.
discussed in the next subsection, the Prattville board of directors approved and
adopted the merger agreement and the transactions contemplated thereby as being
in the best interests of Prattville and its stockholders.
The Board did not quantify or otherwise assign relative weights to the
factors it considered. Individual members of the board may have given different
weights to different factors.
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<PAGE> 20
Opinion of Alex Sheshunoff & Co. Investment Banking, L.P.
Prattville retained Alex Sheshunoff & Co. Investment Banking, L.P. to
provide its opinion of the fairness from a financial viewpoint, of the merger
consideration Prattville stockholders will receive in connection with the merger
with Whitney. As part of its investment banking business, Alex Sheshunoff & Co.
is regularly engaged in the valuation of securities in connection with mergers
and acquisitions and valuations for estate, corporate and other purposes. The
board of directors of Prattville retained Alex Sheshunoff & Co. based upon its
experience as a financial advisor in mergers and acquisitions of financial
institutions and its knowledge of financial institutions.
On May 23, 2000, Alex Sheshunoff & Co. rendered its oral opinion that,
as of such date, the merger consideration was fair, from a financial point of
view, to the stockholders of Prattville. Subsequent to the date of the oral
opinion, certain aspects of the merger consideration have changed as discussed
further in this section. Alex Sheshunoff & Co. rendered its written fairness
opinion based on the changes to the merger consideration as of ________________,
2000.
The full text of the fairness opinion, which sets forth, among other
things, assumptions made, procedures followed, matters considered, and
limitations on the review undertaken, is attached as Appendix B to this proxy
statement/prospectus. The stockholders of Prattville are urged to read the
fairness opinion carefully and in its entirety. The fairness opinion is
addressed to the board of directors of Prattville and does not constitute a
recommendation to any Prattville stockholder as to how to vote at the meeting.
In connection with the fairness opinion, Alex Sheshunoff & Co.:
o Reviewed the merger agreement;
o Evaluated Prattville's consolidated results based upon a
review of its annual financial statements for the three-year
period ending December 31, 1999 and of the year to date ended
June 30, 2000;
o Reviewed Call Report information for the three-year period
ending December 31, 1999 and for the period ending June 30,
2000 for Prattville;
o Conducted conversations with executive management regarding
recent and projected financial performance of Prattville;
o Compared Prattville's recent operating results with those of
certain other banks in the Southeast Region of the United
States (as defined by SNL Securities, LC) that have recently
been acquired;
o Compared Prattville's recent operating results with those of
certain other banks located in the United States that have
recently been acquired;
o Compared the pricing multiples for Prattville in the merger to
those of certain other banks in the Southeast Region of the
United States (as defined by SNL
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<PAGE> 21
Securities, LC) that have recently been acquired;
o Compared the pricing multiples for Prattville in the merger to
those of certain other banks located in the United States that
have recently been acquired;
o Analyzed the net present value of the after-tax cash flows
Prattville could produce through the year 2004, based on
assumptions provided by management;
o Performed an affordability analysis based on the projections
of earnings for the combined entity subsequent to the merger;
o Reviewed the historical stock price data and trading volume of
Whitney common stock and the lack of any active market for the
common stock of Prattville; and
o Performed such other analyses as it deemed appropriate.
In connection with its review, Alex Sheshunoff & Co. relied upon and
assumed the accuracy and completeness of all of the foregoing information
provided to it or made publicly available, and Alex Sheshunoff & Co. did not
assume any responsibility for independent verification of such information. Alex
Sheshunoff & Co. assumed that internal confidential financial projections
provided by Prattville were reasonably prepared reflecting the best currently
available estimates and judgments of the future financial performance of
Prattville and did not independently verify the validity of such assumptions.
Alex Sheshunoff & Co. did not make any independent evaluation or appraisal of
the assets or liabilities of Prattville and was not furnished with any such
appraisals. Alex Sheshunoff & Co. did not examine any individual loan files of
Prattville. Alex Sheshunoff & Co. is not an expert in the evaluation of loan
portfolios for the purposes of assessing the adequacy of the allowance for
losses with respect thereto and has assumed that such allowance is, in the
aggregate, adequate to cover such losses.
With respect to Whitney, Alex Sheshunoff & Co. did not conduct any
independent evaluation or appraisal of the assets, liabilities or business
prospects of Whitney, was not furnished with any evaluations or appraisals and
did not review any individual loan files of Whitney.
The fairness opinion is necessarily based on economic, market and other
conditions as in effect on, and the information made available to Alex
Sheshunoff & Co. as of __________, 2000.
In rendering the fairness opinion, Alex Sheshunoff & Co. performed a
variety of financial analyses. The preparation of an 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.
Consequently, the fairness opinion is not readily susceptible to partial
analysis or summary description. Moreover, the evaluation of fairness, from a
financial point of view, of the merger consideration is to some extent
subjective, based on the experience and judgment of Alex Sheshunoff & Co., and
not merely the result of mathematical analysis of financial data. Accordingly,
notwithstanding the separate factors summarized below, Alex Sheshunoff & Co.
believes that its analyses must be considered as a whole and that selecting
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<PAGE> 22
portions of its analyses and of the factors considered by it, without
considering all analyses and factors, could create an incomplete view of the
evaluation process underlying its opinion. The ranges of valuations resulting
from any particular analysis described below should not be taken to be Alex
Sheshunoff & Co.'s view of the actual value of Prattville.
In performing its analyses, Alex Sheshunoff & Co. made numerous
assumptions with respect to industry performance, business, and economic
conditions and other matters, many of which are beyond the control of
Prattville. The analyses performed by Alex Sheshunoff & Co. are not necessarily
indicative of actual values or future results, which may be significantly more
or less favorable than suggested by such analyses, nor are they appraisals. In
addition, you should not view Alex Sheshunoff & Co.'s analyses as determinative
of the opinion of the board of directors or the management of Prattville with
respect to the value of Prattville.
The following is a summary of the analyses performed by Alex Sheshunoff
& Co. in connection with its opinion. The following discussion contains
financial information concerning Prattville and Whitney as of June 30, 2000 and
market information as of __________________, 2000. For the purposes of the
following analysis, Alex Sheshunoff & Co. utilized a value of the merger
consideration of $__________ per share based upon Whitney's 25-day average stock
price of $____________ per share as of ________________, 2000. Alex Sheshunoff &
Co. derived this value using the base purchase price of $38,700,000 plus
management's anticipated retained net income after tax through November 30, 2000
of $1,053,000. No gain from the sale of the Prattmont branch was included in the
merger consideration as the sale of the branch did not occur as anticipated and,
as of the date hereof, no other sale of the branch is pending. The merger
consideration may have a higher value should a valid sale be consummated prior
to the time of the merger.
Analysis of Selected Transactions. Alex Sheshunoff & Co. performed an
analysis of premiums paid in selected pending or recently completed acquisitions
of banking organizations in the United States with comparable characteristics to
the merger. Alex Sheshunoff & Co. analyzed two sets of comparable transactions
to ensure a thorough comparison.
The first set of comparable transactions consisted of a group of
transactions in the Southeast Region of the United States for which pricing data
were available. These comparable transactions consisted of fourteen mergers and
acquisitions of banks with assets between $100 million and $250 million, stock
consideration and those which were announced between January 1, 1999 and October
17, 2000. The analysis yielded multiples of the purchase prices in these
transactions relative to:
o Book value ranging from 1.5 times to 4.3 times with an average
of 2.8 times and a median of 2.6 times compared with the
multiple implied in the merger of 1.8 times June 30, 2000 book
value for Prattville;
o Last twelve months earnings ranging from 12.8 times to 37.7
times with an average of 23.2 times and a median of 21.5 times
compared with the multiples implied in the merger of 26.0
times last twelve months earnings as of June 30, 2000 for
Prattville and 22.4 times 2000 projected core earnings. Core
earning represent Prattville's earnings excluding recoveries,
negative loan loss reserve
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<PAGE> 23
provisions, and other unusual items;
o Total assets ranging between 10.7% and 34.9% with an average
of 25.4% and a median of 27.7% compared with the multiples
implied in the merger of 23.5% of June 30, 2000 total assets
for Prattville; and
o Total deposits ranging from 11.7% to 39.7% with an average of
29.6% and a median of 32.8% compared with the multiples
implied in the merger of 27.9% of deposits as of June 30, 2000
for Prattville.
The second set of comparable transactions consisted of a group of
comparable transactions based upon the financial characteristics of Prattville
for which pricing data were available. These comparable transactions
specifically consisted of nine mergers and acquisitions of banks in the United
States with total assets between $100 million and $250 million, had a return on
average assets between 0.5% and 1.0%, stock consideration and those which were
announced between January 1, 1999 and October 17, 2000. The analysis yielded
multiples of the purchase prices in these transactions relative to:
o Book value ranging from 1.3 times to 3.2 times with an average
of 2.3 times and a median of 2.3 times compared with the
multiple implied in the merger of 1.8 times June 30, 2000 book
value for Prattville;
o Last twelve months earnings ranging from 15.8 times to 36.3
times with an average of 23.6 times and a median of 22.8 times
compared with the multiples implied in the merger of 26.0
times last twelve months earnings as of June 30, 2000 for
Prattville and 22.4 times 200 projected core earnings. Core
earnings represent Prattville's earnings excluding recoveries,
negative loan loss reserve provisions, and other unusual
items;
o Total assets ranging between 12.0% and 30.3% with an average
of 19.3% and a median of 18.2% compared with the multiples
implied in the merger of 23.5% of June 30, 2000 total assets
for Prattville; and
o Total deposits ranging from 14.1% to 35.8% with an average of
22.3% and a median of 21.4% compared with the multiples
implied in the merger of 27.9% of deposits as of June 30, 2000
for Prattville.
Discounted Cash Flow Analysis. Using discounted cash flow analysis,
Alex Sheshunoff & Co. estimated the present value of the future after-tax cash
flow streams that Prattville could produce through the year 2004, under various
circumstances, assuming that it performed in accordance with the earnings/return
projections provided by management.
Alex Sheshunoff & Co. estimated the terminal value for Prattville at
the end of 2004 by capitalizing the final period projected earnings by the
quotient of (i) the assumed annual growth rate of the earnings of Prattville
plus one and (ii) the difference between a range of required rates of return and
the assumed annual growth rate of earnings in (i) above. Alex Sheshunoff & Co.
discounted the annual cash flow streams (defined as all earnings in excess of
that required to maintain a tangible equity to asset ratio of 8.0%) and the
terminal values using discount rates
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<PAGE> 24
ranging from 13% to 15%. The discount range was chosen to reflect different
assumptions regarding the required rates of return of Prattville and the
inherent risk surrounding the underlying projections. This discounted cash flow
analysis indicated a range of values per share of $20.20 to $25.50, compared to
the value per share of the merger consideration to Prattville shareholders of
$____________ per share as of ______________________, 2000.
Comparable Company Analysis. Alex Sheshunoff & Co. compared selected
stock market results of Whitney to the publicly available corresponding data of
other composites which Alex Sheshunoff & Co. deemed to be relevant, including
the Alex Bank Index and the S&P 500. During the last twelve months, Whitney's
share price performance has been below that of the S&P 500 but superior to the
Alex Bank Index.
No company or transaction used in the comparable company and comparable
transaction analyses is identical to Prattville, Whitney or the merger.
Accordingly, an analysis of the results of the foregoing necessarily involves
complex considerations and judgments concerning differences in financial and
operating characteristics of Prattville and Whitney and other factors that could
affect the public trading value of the companies to which they are being
compared. Mathematical analysis (such as determining the average or median) is
not in itself a meaningful method of using comparable transaction data or
comparable company data.
Pursuant to an engagement letter dated August 19, 1999, between
Prattville and Alex Sheshunoff & Co., Prattville agreed to pay Alex Sheshunoff &
Co. a transaction fee calculated as follows:
<TABLE>
<CAPTION>
Consideration Amount Transaction Fee
<S> <C>
Less than $43 million .75% of Total Consideration
Greater than $43 million but less than or equal .90% of Total Consideration
to $47 million
Greater than $47 million .95% of Total Consideration
</TABLE>
Prattville also agreed to indemnify and hold harmless Alex Sheshunoff &
Co. and its officers and employees against certain liabilities in connection
with its services under the engagement letter, except for liabilities resulting
from the negligence, violation of law or regulation or bad faith of Alex
Sheshunoff & Co. or any matter for which Alex Sheshunoff & Co. may have strict
liability.
The fairness opinion is directed only to the question of whether the
merger consideration is fair from a financial perspective and does not
constitute a recommendation to any Prattville stockholder to vote in favor of
the merger. Prattville did not impose any limitations on Alex Sheshunoff & Co.
regarding the scope of its investigation or otherwise.
Based on the results of the various analyses described above, Alex
Sheshunoff & Co. concluded that the merger consideration to be received by
Prattville stockholders pursuant to the merger is fair from a financial point of
view.
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<PAGE> 25
TERMS OF THE MERGER
GENERAL
If Prattville's stockholders approve the merger agreement and the other
conditions to the merger are satisfied, then on the effective date of the
merger, Prattville will merge into Whitney, the separate existence of Prattville
will cease and Bank of Prattville will become a wholly-owned subsidiary of
Whitney. Thereafter, in due course, Bank of Prattville will merge with and into
Whitney National Bank and the separate existence of Bank of Prattville will
cease. See "- Conditions to the Merger; Waiver of Those Conditions" for a
discussion of the other conditions to completing the merger.
CONSIDERATION TO BE PAID TO PRATTVILLE STOCKHOLDERS
When the merger is completed, subject to the effect of the exercise of
any appraisal rights, the outstanding shares of Prattville common stock will be
converted into an aggregate number of shares of Whitney common stock equal to:
o the sum of $38,700,000 plus Retained Net Income After
Tax, plus the tax-effected gain that Prattville
recognizes on the sale of its Prattmont branch, if
any (the "Purchase Price"), divided by
o the average of the closing per share trading prices
(adjusted appropriately for any stock split, stock
dividend recapitalization, reclassification or
similar transaction that is effected or for which a
record date occurs) of Whitney common stock (the
"Trading Prices") on the 25 trading days preceding
the fifth trading day immediately prior to the
effective date of the merger (the "Average Market
Price").
The actual number of shares of Whitney common stock that a Prattville
stockholder will receive will vary depending upon the Average Market Price of
the Whitney common stock, the amount of any Prattville Retained Net Income After
Tax and the amount of any tax-effected gain on the sale of the Prattmont Branch.
The merger agreement defines "Retained Net Income After Tax" as the
consolidated retained net income of Prattville for the period April 1, 2000
through the end of the month immediately preceding the effective date, as agreed
to by Whitney and Prattville, based on normal banking net income, less
appropriate income taxes accrued and dividends declared and/or paid and
excluding any unusual or nonrecurring additions to net income such as reversals
of loan loss or other valuation reserves and gains on the sale of investments or
other assets. Retained Net Income After Tax is not reduced by Prattville's
expenses for its counsel, accounting services and investment advisor incurred in
connection with the merger, provided such expenses do not exceed $425,000 in the
aggregate; any expenses in excess of that limit will reduce Retained Net Income
After Tax on a dollar for dollar basis. For the period April 1, 2000 through
________________, 2000, on an unaudited basis, Prattville had Retained Net
Income After Tax
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<PAGE> 26
of approximately $__________________. Whitney has not reviewed this figure, and
because the determination of Retained Net Income After Tax is dependent upon the
facts as of the end of the month immediately preceding the effective date of the
merger, we cannot estimate the amount of Retained Net Income After Tax, if any,
with certainty at this time.
Prattville entered into a contract with C.F. Halstead Contractors, Inc.
for the sale of the Prattmont Branch. Halstead has given Prattville notice that
the sale will not close. Prattville is soliciting other proposals for the sale
of the Prattmont Branch. We cannot assure you that Prattville will sell the
Prattmont Branch prior to the merger. If a sale does not occur by that time,
there will be no increase in the number of Whitney shares to be issued in the
merger, other than the increase attributable to Prattville's Retained Net Income
After Tax, if any.
If Whitney issues a press release before the effective date of the
merger announcing that it is negotiating or has executed a definitive merger or
other acquisition agreement as a result of which Whitney would cease to be an
independent, publicly traded company and has not thereafter issued a press
release announcing the termination of those negotiations or definitive
agreement, then the "Average Market Price" for purposes of the merger agreement
will be the average of the Trading Prices on the 25 trading days preceding the
10th trading day immediately before the first of such press releases.
Inasmuch as the consideration that Whitney will pay in the merger will
be based on the "Average Market Price" of Whitney common stock as defined in the
merger agreement, the actual value of the shares that Prattville's stockholders
will receive on the date of the merger may be more or less than the Average
Market Price of those shares as calculated in accordance with the merger
agreement. On ________, 2000, the closing trading price for a share of Whitney
common stock was $______, and if such date had been the effective date, the
Average Market Price would have been $_________.
The following table shows examples of the number of shares of Whitney
common stock into which each share of Prattville common stock would be converted
in the merger, assuming that the Average Market Price for Whitney common stock
is as specified below. The table does not reflect any Retained Net Income After
Tax or any tax-effected gain on the sale of the Prattmont branch, which would
increase the number of shares of Whitney common stock in each case.
<TABLE>
<CAPTION>
NUMBER OF
ASSUMED AVERAGE WHITNEY
MARKET PRICE OF WHITNEY TOTAL NUMBER OF SHARES OF SHARES PER
COMMON WHITNEY COMMON STOCK PRATTVILLE
STOCK TO BE ISSUED(1) SHARE(2)
----------------------- ------------------------- ----------
<S> <C> <C>
$45.00 860,000 0.8739
40.00 967,500 0.9831
35.00(3) 1,105,714 1.1235
</TABLE>
-21-
<PAGE> 27
<TABLE>
<CAPTION>
NUMBER OF
ASSUMED AVERAGE WHITNEY
MARKET PRICE OF WHITNEY TOTAL NUMBER OF SHARES OF SHARES PER
COMMON WHITNEY COMMON STOCK PRATTVILLE
STOCK TO BE ISSUED(1) SHARE(2)
----------------------- ------------------------- ----------
<S> <C> <C>
30.00 1,290,000 1.3108
25.00 1,548,000 1.5730
</TABLE>
------------------
(1) Assuming no appraisal rights are exercised and ignoring fractional
shares.
(2) Based on 984,132 shares of Prattville common stock, the number of shares
outstanding on ____________, 2000. Due to fluctuations in the trading
prices of Whitney common stock and the amount, if any, of Retained Net
Income After Tax and gain on the sale of the Prattmont branch, we cannot
currently determine the actual number of shares of Whitney common stock
Prattville's stockholders will receive.
(3) The closing price of Whitney common stock on ____________, 2000 was
$____________.
----------
Whitney will not issue any fractional shares of Whitney common stock in
the merger. Instead, Whitney will make a cash payment (without interest) to any
Prattville stockholder who would otherwise receive a fractional share. The
payment will equal such fractional share multiplied by the Average Market Price.
For information regarding restrictions on the transfer of Whitney
common stock applicable to certain Prattville stockholders, see "-Resales of
Whitney Common Stock."
SURRENDER AND EXCHANGE OF STOCK CERTIFICATES
On the effective date of the merger, Prattville's stockholders who have
not exercised appraisal rights will automatically become entitled to all of the
rights and privileges afforded to Whitney shareholders at that time. However,
the actual physical exchange of Prattville common stock certificates for
certificates representing shares of Whitney common stock will occur after the
merger.
Whitney's transfer agent will serve as exchange agent for the merger.
Shortly after the effective date of the merger, Whitney will send or cause to be
sent to all Prattville stockholders (other than any stockholders who have
exercised their right of appraisal) a letter of transmittal with instructions
for exchanging Prattville common stock certificates for certificates of Whitney
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<PAGE> 28
common stock. Each Prattville stock certificate outstanding immediately prior to
the merger and that will be exchanged in the merger will be deemed for all
purposes to evidence ownership of shares of Whitney common stock, regardless of
when they are actually exchanged.
PRATTVILLE STOCKHOLDERS SHOULD NOT SEND IN THEIR PRATTVILLE COMMON
STOCK CERTIFICATES UNTIL THEY HAVE RECEIVED A LETTER OF TRANSMITTAL AND FURTHER
WRITTEN INSTRUCTIONS AFTER THE EFFECTIVE DATE OF THE MERGER. PLEASE DO NOT SEND
IN YOUR STOCK CERTIFICATES WITH YOUR PROXY.
When the exchange agent receives certificates of Prattville common
stock, together with a properly completed letter of transmittal, it will issue
and mail to the Prattville stockholder a certificate representing the number of
whole shares of Whitney common stock that the former Prattville stockholder
received in the merger. If the Prattville stockholder is entitled to receive a
fraction of a Whitney share, the exchange agent will mail the Prattville
stockholder a check instead of the fractional share.
Whitney, at its option, may decline to pay former stockholders of
Prattville who become holders of Whitney common stock pursuant to the merger any
dividends or other distributions that may become payable to holders of record of
Whitney common stock following the effective date of the merger until they have
surrendered their certificates evidencing their Prattville common stock, at
which time Whitney will pay any such dividends or other distributions without
interest.
Prattville stockholders who cannot locate their stock certificates are
urged to contact promptly:
Prattville Financial Services Corporation
124 W. Main Street
Prattville, Alabama 36067
Attention: Albert C. Striplin, Secretary
Telephone: (334) 361-3312
Prattville will issue a new stock certificate to replace the lost certificate(s)
only if the Prattville stockholder signs an affidavit certifying that his or her
certificate(s) cannot be located and containing an agreement to indemnify
Prattville and Whitney against any claim that may be made against Prattville or
Whitney by the owner of the certificate(s) alleged to have been lost or
destroyed. Prattville or Whitney may also require the stockholder to post a bond
in an amount sufficient to support the stockholder's agreement to indemnify
Prattville and Whitney.
PAYMENT OF EXPENSES RELATING TO THE MERGER
Whitney will pay all expenses of printing and distributing this proxy
statement-prospectus. The parties otherwise will pay all of their own expenses
related to negotiating and completing the merger.
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<PAGE> 29
CONDITIONS TO THE MERGER; WAIVER OF THOSE CONDITIONS
The merger agreement contains a number of conditions that must be
satisfied or waived (if they are waivable) to complete the merger. The
conditions include, among other things:
o approval of the merger agreement by Prattville's
stockholders;
o approval of the merger by the Federal Reserve Board
without imposing conditions unacceptable to Whitney
(see "-Regulatory and Other Required Approvals");
o issuance of a tax opinion that the merger qualifies
as a tax-free reorganization;
o the absence of a stop order suspending the
effectiveness of Whitney's registration statement
under the Securities Act;
o absence of an order, decree or injunction enjoining
or prohibiting completion of the merger;
o continued accuracy as of the closing date of the
merger of the representations and warranties set
forth in the merger agreement and fulfillment of the
parties' covenants set forth in the merger agreement;
o the absence of any material adverse change in the
financial condition, results of operations, business
or prospects of the other parties;
o Prattville's receipt of a letter from Alex Sheshunoff
& Co., dated as of the meeting date, confirming its
fairness opinion to Prattville's board;
o Prattville's transfer of certain branch properties to
Bank of Prattville;
o that Whitney does not enter into an agreement that
would result in Whitney no longer being an
independent public company;
o qualification of the merger for pooling-of-interests
accounting treatment; and
o issuance of certain legal opinions by counsel for
Prattville and Whitney.
The conditions to the merger are generally set forth in Section 6 of the merger
agreement.
Nearly all of the conditions to completing the merger may be waived at
any time by the party for whose benefit they were created, except that the
conditions regarding regulatory and stockholder approvals, the continued
effectiveness of Whitney's registration statement and the fairness opinion
confirmation may not be waived. Also, the parties may amend or supplement the
merger agreement at any time by written agreement. The parties' boards of
directors must
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<PAGE> 30
approve any material amendments. Any material change in the terms of the merger
agreement after the meeting may require a re-solicitation of votes from
Prattville's stockholders with respect to the changed merger agreement.
The parties intend to complete the merger as soon as practicable after
all conditions have been satisfied or waived; however, we cannot assure you that
all conditions will be satisfied or waived.
REGULATORY AND OTHER REQUIRED APPROVALS
The Board of Governors of the Federal Reserve Board must approve the
merger before it can be completed. Whitney and Prattville must then wait at
least 15 days after the date of Federal Reserve Board approval before they may
complete the merger. During this 15-day period, the U.S. Department of Justice
may object to the merger on antitrust grounds.
The Whitney stock to be issued in exchange for Prattville stock in the
merger has been registered with the Securities and Exchange Commission. The
transaction also will be registered with such state securities regulators as may
be required.
Whitney filed an application for approval of the merger with the
Federal Reserve Board on October 18, 2000, and the Federal Reserve Board
approved the application to merge on ________________, 2000.
BUSINESS OF PRATTVILLE PENDING THE MERGER
The merger agreement requires Prattville, Bank of Prattville and their
subsidiaries to continue to operate their business as usual pending the merger.
Among other things, they may not, without Whitney's consent, take or agree to
take any of the following actions:
o declare or pay any dividend, except Prattville's
payment of (a) its regular quarterly dividends in
amounts not to exceed $0.11 per share and (b) a
special dividend of up to $0.05 per share payable in
January 2001, provided the special dividend does not
disqualify the merger as a pooling of interests or as
a tax-free reorganization;
o declare or make any other 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 for capital stock;
o 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 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;
-25-
<PAGE> 31
o 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 allowed
under the merger agreement) 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;
o 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;
o 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;
o enter into any new line of non-banking business;
o take or cause to be taken any action that would
disqualify the merger as a pooling of interests for
accounting purposes or as a reorganization within the
meaning of Section 368(a) of the Internal Revenue
Code.
The restrictions on Prattville's business activities are generally set forth in
Section 5.07 of the merger agreement.
In addition, subject to the proper exercise of Prattville's board of
directors' and executive officers' fiduciary duties, neither Prattville nor any
of its subsidiaries may solicit inquiries or proposals with respect to, or
furnish any information relating to, or enter into any negotiations or
discussions concerning, any sale of all or substantially all of its assets, any
purchase of a substantial equity interest in it or any merger or other
combination with it. Subject to the same fiduciary duties, Prattville's board
may not withdraw its recommendation to you of the merger or recommend to you any
such other transaction.
TERMINATION OF THE MERGER AGREEMENT; TERMINATION FEE
The merger agreement specifies the circumstances in which the parties
may terminate the agreement and abandon the merger. Those circumstances are:
o by mutual consent of Whitney's and Prattville's
boards of directors;
o by either party if the other party breaches any
representation, warranty or covenant and such breach
is not cured within 30 days after written notice;
o by either party if the merger is not consummated by
January 31, 2001, unless extended, or if the
conditions to such parties obligation to close are
not satisfied by such date;
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<PAGE> 32
o by either party if the Prattville stockholders do not
approve the merger agreement;
o by Whitney if Prattville's board of directors
withdraws or changes its recommendation of the merger
agreement, recommends a merger, sale of assets or
other business combination or substantial investment
by a third party (other than the Whitney merger), or
announces any agreement to do any of those things;
o by Prattville if Prattville receives a bona fide
written offer for an acquisition transaction that the
Prattville board determines to be more favorable than
the Whitney merger; or
o by Whitney if the amount of cash to be paid in the
merger (whether to stockholders who have exercised
appraisal rights or as payments in lieu of fractional
shares) would preclude pooling-of-interests
accounting for the merger.
If Whitney terminates the merger agreement because Prattville's board
recommends an acquisition transaction other than the Whitney merger, or if
Prattville terminates the agreement because it has received an offer for such an
acquisition transaction, then Prattville must pay Whitney a termination fee of
$1,900,000.
Provisions of the merger agreement regarding confidentiality, payment
of the termination fee and certain miscellaneous matters will survive any
termination of the agreement.
REPRESENTATIONS AND WARRANTIES IN THE MERGER AGREEMENT
Prattville, Bank of Prattville, Whitney and Whitney National Bank have
made certain representations and warranties to each other as part of the merger
agreement. Prattville's and Bank of Prattville's representations and warranties
relate to, among other things:
o their organization and authority to enter into the
merger agreement;
o their capitalization, subsidiaries, properties and
financial statements;
o pending and threatened litigation;
o their loans, investment portfolios, reserves and
taxes;
o insurance, employee benefits and environmental
matters;
o their contractual obligations and contingent
liabilities; and
o their public reports filed with the Federal Reserve
Board and the Federal Deposit Insurance Corporation.
-27-
<PAGE> 33
Prattville's and Bank of Prattville's representations and warranties are
generally contained in Section 3 of the merger agreement.
Whitney's and Whitney National Bank's representations and warranties
relate to, among other things:
o their organization and authority to enter into the
merger agreement;
o Whitney's capitalization and financial statements;
o pending and threatened litigation against Whitney and
Whitney National Bank;
o the shares of Whitney common stock to be issued in
the merger; and
o Whitney's public reports filed with the Securities
and Exchange Commission.
Whitney's and Whitney National Bank's representations and warranties are
generally contained in Section 4 of the merger agreement.
Whitney's and Whitney National Bank's representations and warranties
are for the benefit of Prattville and Bank of Prattville; they are not for the
benefit of and may not be relied upon by Prattville's stockholders. The
representations and warranties of the parties generally will not survive the
effective date of the merger.
CERTAIN DIFFERENCES IN RIGHTS OF STOCKHOLDERS
If the merger is completed, all Prattville stockholders, other than
those who exercise and perfect appraisal rights, will become Whitney
shareholders. Their rights as shareholders will then be governed by Whitney's
articles of incorporation and bylaws and by Louisiana law. The following is a
list of the significant differences between the rights of Prattville
stockholders and Whitney shareholders not described elsewhere in this proxy
statement-prospectus:
Liquidity of Stock
The common stock of Whitney is traded on the Nasdaq Stock Market.
Prattville common stock is not publicly traded.
Boards of Directors
Whitney's articles of incorporation provide for a board of directors
consisting of not less than five nor more than twenty-five members divided into
five classes. Each class of directors serves a five-year term, and directors of
each class are elected by plurality vote at successive annual meetings of
shareholders. Whitney's directors must also be shareholders of Whitney.
-28-
<PAGE> 34
Prattville's by-laws provide for a board of directors consisting of not
less than five nor more than twenty-five directors, serving in a single class.
Directors are elected by plurality vote at each annual meeting of the
stockholders.
Nomination of Directors
Whitney has no specified procedures for shareholder nomination of
directors. Prattville's certificate of incorporation requires board members to
be nominated by the board of directors or by stockholders. Stockholder
nominations require advance written notice at least 14 days before the meeting
at which directors are to be elected.
Removal of Directors
A Whitney 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. The holders of 90% of the total
voting power of Whitney shareholders must be present in person or by proxy for
there to be a quorum at the meeting.
A Prattville director may be removed from office with or without cause,
by the affirmative vote of the holders of a majority of issued and outstanding
shares of Prattville common stock. Any vacancies in the board may be filled by a
vote of the majority of the directors.
Special Meetings of Shareholders
Special meetings of Whitney shareholders may be called by:
o the president,
o the board of directors, or
o shareholders holding more than 20% of the total
voting power of Whitney's shareholders.
Special meetings of Prattville stockholders may be called only by
Prattville's board of directors.
Shareholder Inspection Rights
Any shareholder of Whitney, except a business competitor, has the right
to examine in person or by representative Whitney's books and records for any
proper purpose. To do so, a shareholder must send five days' written notice to
Whitney and must have held at least 5% of the outstanding shares of Whitney
common stock for a minimum of six months. Two or more shareholders may aggregate
their holdings to reach the required 5% threshold. Business competitors must
hold at least 25% of the outstanding shares of Whitney common stock for a
minimum of six months to obtain these inspection rights.
-29-
<PAGE> 35
Under Delaware law, any Prattville stockholder (no matter how few
shares he or she holds) has the right upon written demand under oath to inspect
the company's books and records for any purpose reasonably related to the
stockholder's interest as a stockholder.
Antitakeover Provisions
Whitney's articles of incorporation include provisions that may make
more difficult takeover attempts and other acquisitions of interests in Whitney
that have not been approved by Whitney's board of directors. These provisions
include:
o A requirement that any change to Whitney's articles
of incorporation relating to the structure of the
board of directors or the fair price protections
described in the next bullet point must be approved
by the affirmative vote of shareholders holding 90%
of the voting power present at a shareholders
meeting, the quorum for which is 90% of Whitney's
total voting power, unless Whitney's board of
directors has unanimously approved the change.
o A requirement that any business combination
transaction with a person or persons who hold 10% or
more of Whitney common stock be approved by the 90%
vote of shareholders described in the preceding
bullet point unless certain minimum price and
procedural requirements are satisfied in connection
with the proposed business combination.
Under these provisions, a business combination that might be attractive
to some shareholders might not be proposed to Whitney's shareholders or, if
proposed, might not be consummated. The provisions may give holders of a
minority of Whitney's voting power a veto over a business combination that a
majority of shareholders may believe to be desirable and beneficial. To
Whitney's knowledge, on September 30, 2000, its directors and executive officers
beneficially owned 2,084,869 shares (or approximately 9.2%) of Whitney's
outstanding common stock. As a result, it may be difficult or impossible for a
shareholder holding 10% or more of Whitney stock to secure the necessary
supermajority vote without management and board approval.
The Louisiana Business Corporation Law contains provisions similar to
Delaware law that eliminate the voting rights of shareholders who acquire
significant blocks of Whitney common stock under certain circumstances unless
Whitney's non-interested shareholders grant the shareholder the right to vote
its shares. If non-interested shareholders do not grant the shareholder voting
rights, Whitney may redeem the shareholder's shares at their fair market value.
Prattville's certificate of incorporation also includes provisions that
attempt to make more difficult unfriendly takeovers. These provisions include:
o A proposed transaction that fails to meet certain
price requirements or that has not been approved by a
majority of continuing directors must be approved by
either (i) stockholders owning at least 70% of the
Prattville
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<PAGE> 36
shares issued and outstanding, or (ii) 70% of the
members of the board of directors.
o Certain amendments to the certificate of
incorporation must be approved by Prattville
stockholders owning at least 70% of the shares issued
and outstanding.
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Employee Benefits
Whitney has agreed that all persons employed by Prattville and Bank of
Prattville at the effective time of the merger will be eligible for such
employee benefits as are generally available to employees of Whitney National
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 National Bank's
Compensation Committee, and (b) all Prattville and Bank of Prattville employees
who are employed at the effective time of the merger will be given full credit
for all prior service as employees of Prattville or Bank of Prattville,
provided, however, that all such employees shall be treated as newly hired
Whitney National Bank employees for all purposes of Whitney's or Whitney
National Bank's defined benefit pension plan (this means that Whitney will not
consider prior service credit with Prattville and Bank of Prattville in
determining future benefits under Whitney's or Whitney National Bank's defined
benefit pension plan).
Indemnification and Insurance
Whitney has agreed that all rights to indemnification and all
limitations of liability existing in favor of indemnified parties under
Prattville's certificate of incorporation and bylaws and Bank of Prattville's
articles of association and bylaws as in effect on August 8, 2000 with respect
to matters occurring prior to or at the effective time of the merger will
survive for a period concurrent with the applicable statute of limitations.
Whitney has also agreed to allow Prattville, at its option, to cause the
officers and directors of Prattville and Bank of Prattville to be covered by
Prattville's and Bank of Prattville's directors and officers liability insurance
policy (or a substitute policy) for three years following the effective time of
the merger, subject to certain conditions. In addition, Whitney has agreed to
indemnify, under certain conditions, Prattville's and Bank of Prattville's
directors, officers and controlling persons against certain expenses and
liabilities, including certain liabilities arising under federal securities
laws.
Except for Mr. Albert C. Striplin, who owns 100 shares of Whitney
common stock, no director or executive officer of Prattville or Bank of
Prattville owns any Whitney common stock. No director or executive officer of
Whitney has any personal interest in the merger other than as a Whitney
shareholder. No Whitney director or executive officer owns any shares of
Prattville common stock.
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<PAGE> 37
Severance Agreements
Prattville entered into Severance Compensation Agreements, each
effective as of December 31, 1999, with the five executives listed below. Each
agreement provides for the payment of a multiple of the executive's monthly
salary (less any bonus or other incentive pay) as indicated below if the
executive's employment is terminated following a change in control, provided
that such termination is not for "cause" or is by the executive for "good
reason." The merger will be deemed a change of control under these agreements.
Accordingly, if during a one-year period following the merger a covered
executive is terminated for a reason other than "cause" or the executive chooses
to terminate his employment for "good reason," then the executive will be
entitled to payments and benefits in accordance with these agreements. Any
payments under the agreements would be at the executive's election payable in
(i) a lump sum in cash, on the fifth day following the date of termination, or
(ii) six equal monthly installments, in cash, beginning on the fifth day
following the date of termination.
"Good Reason" is defined under the agreements to include (i) the
assignment to the executive of duties inconsistent with executive's position,
authorities or duties as in effect prior to the change in control; (ii) a
reduction in executive's base salary during the 12 months following a change in
control or a failure to increase such executive's salary on a percentage basis
that equals or exceeds the average percentage increase in base salary for all
officers during the preceding 12-month period; (iii) failure to continue a
benefit plan or arrangement; (iv) failure to continue in effect an incentive
plan or arrangement that would adversely affect executive's benefits by 10%; (v)
relocating executive more than 20 miles from the location of executive's office
prior to the change in control; and (vi) reduction in vacation benefits.
"Cause" is defined under the agreements to be termination on a basis of
fraud, misappropriation or embezzlement on the part of the executive in the good
faith opinion of the company's board of directors.
The Prattville executives with Severance Compensation Agreements (and
their respective multiples of monthly salary) are:
A. C. Striplin (36 months salary)
Steve T. Goslan (6 months salary)
Anthony G. McInvale (6 months salary)
LeMerle C. Shedd (6 months salary)
C. Allen Tanner (6 months salary)
MATERIAL TAX CONSEQUENCES OF THE MERGER
The following is a summary description of the material income tax
consequences of the merger. We do not intend it to be a complete description of
the federal income tax consequences of the merger. Tax laws are complex, and
your individual circumstances may affect the tax consequences to you. In
addition, we have not included information about the tax consequences of the
merger under state, local or other tax laws. We urge you to consult a tax
advisor regarding the tax consequences of the merger to you.
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Whitney and Prattville must receive a tax opinion from Arthur Andersen
LLP in order to complete the merger. The tax opinion will be based upon
representations made by Whitney and Prattville about the terms of the merger and
certain other matters. The tax opinion must conclude that the merger will
constitute a reorganization within the meaning of Section 368 of the Internal
Revenue Code, which means:
o neither Whitney nor Prattville will recognize any
gain or loss in the merger;
o Prattville's stockholders will not recognize any gain
or loss for federal income tax purposes to the extent
they receive Whitney common stock in exchange for
their Prattville common stock;
o the tax basis of the Whitney common stock received in
the merger will be the same as the tax basis of the
exchanged Prattville common stock;
o the holding period, for federal income tax purposes,
for Whitney common stock received in the exchange
will include the period during which the stockholder
held his or her Prattville common stock (as long as
the Prattville common stock was held as a capital
asset at the effective date of the merger); and
o where solely cash is received by a holder of
Prattville common stock in the merger pursuant to the
exercise of rights of appraisal, such cash will be
treated as a redemption of the stockholder's common
stock subject to the provisions and limitations of
Section 302 of the Internal Revenue Code.
ACCOUNTING TREATMENT OF THE MERGER
Whitney intends to account for the merger as a pooling of interests. In
order for the merger to qualify for pooling-of-interests accounting treatment,
among other things, the total amount of cash that Whitney is required to pay as
a result of the merger cannot exceed 10% of the value of the outstanding
Prattville common stock to be exchanged in the merger. Also, in order for the
pooling-of-interests accounting method to apply, affiliates of Whitney and
Prattville cannot sell, transfer, pledge or otherwise alienate or encumber any
shares of Whitney common stock (whether received in the merger or otherwise)
until Whitney has published the results of at least 30 days of post-merger
combined operations of Whitney and Prattville. Whitney is not obligated to
consummate the merger if the merger does not qualify for pooling-of-interests
accounting treatment.
RESALE OF WHITNEY COMMON STOCK
The shares of Whitney common stock to be issued in the merger have been
registered under the Securities Act of 1933, as amended. Prattville stockholders
who are not affiliates of Prattville or Whitney may freely trade their Whitney
common stock upon completion of the merger. The term "affiliate" generally means
each person who was an executive officer, director
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or 10% shareholder of Prattville prior to the merger or who is an executive
officer, director or 10% shareholder of Whitney after the merger.
Those stockholders who are deemed to be affiliates of Prattville may
only sell their Whitney common stock as provided by Rule 145 of the Securities
Act, or as otherwise permitted under the Securities Act.
If you are or may be a Prattville affiliate, you should carefully
consider the resale restrictions imposed by Rule 145 before you attempt to
transfer any shares of Whitney common stock after the merger. Persons assumed to
be affiliates of Prattville have entered into agreements with Whitney not to
sell shares of Whitney common stock they receive in the merger in violation of
the Securities Act of 1933, as amended.
Further, such affiliates have agreed not to transfer any shares of
Whitney common stock until Whitney releases financial results that include at
least 30 days of post-merger combined operations of Whitney and Prattville. This
restriction is necessary in order to satisfy certain requirements for
pooling-of-interests accounting treatment.
RIGHTS OF DISSENTING STOCKHOLDERS (APPRAISAL RIGHTS)
The Delaware General Corporation Law (the DGCL) provides Prattville
stockholders with the right to seek an appraisal and obtain cash for their
Prattville shares if the merger is consummated. The availability of these
appraisal rights is conditioned upon compliance with the provisions of Section
262 of the DGCL. Accordingly, any Prattville stockholder who wishes to demand
appraisal rights in connection with the proposed merger and receive the
appraised cash value of his or her shares should consult with legal counsel.
Shares of Prattville common stock held by a stockholder who exercises
appraisal rights in connection with the merger will not be converted into shares
of Whitney common stock. Instead, they will be converted into the right to
receive such cash consideration as the Delaware Court of Chancery determines to
be due with respect to such shares in accordance with the DGCL.
THE FOLLOWING SUMMARY OF THE PROVISIONS OF SECTION 262 IS NOT INTENDED
TO BE A COMPLETE STATEMENT OF SUCH PROVISIONS AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO THE FULL TEXT OF SECTION 262, A COPY OF WHICH IS ATTACHED AS
APPENDIX C AND IS INCORPORATED INTO THIS DISCUSSION BY REFERENCE.
Section 262 requires Prattville to notify its stockholders of record
entitled to notice of and to vote at the meeting that appraisal rights are
available for all or any of the shares of Prattville common stock proposed to be
converted in the merger. That notice must be given not less than 20 days prior
to the meeting and must include a copy of Section 262. This proxy statement-
prospectus, including Appendix C, serves as the Prattville notice required under
Section 262.
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To exercise appraisal rights, a Prattville stockholder must:
o deliver to Prattville, before the vote on the merger
at the meeting, a written demand for appraisal
reasonably identifying the stockholder and his or her
intent (a proxy or vote against the merger will not
constitute such a demand); and
o not vote his or her shares of Prattville common stock
in favor of the merger agreement.
Demands for appraisal should be sent to:
Prattville Financial Services Corporation
124 W. Main Street
Prattville, Alabama 36067
Attention: Albert C. Striplin, Secretary
Within ten days after the effective date of the merger, Whitney must
deliver to each Prattville stockholder who satisfies the requirements for
appraisal rights as set forth in the preceding paragraph a written notice of the
date on which the merger became effective. For appraisal rights to remain
available, either Whitney or any Prattville stockholder who satisfies the
foregoing requirements must, within 120 days after the effective date of the
merger, file a petition in the Delaware Court of Chancery demanding a
determination of the value of the stock of all such stockholders. Whitney does
not intend to file such a petition.
Within 120 days after the effective date of the merger, Prattville
stockholders who have properly preserved their appraisal rights may also, upon
written request, receive from Whitney a statement setting forth the aggregate
number of shares of Prattville stock as to which demands for appraisal have been
received and the number of holders of such shares.
At any time within 60 days after the effective date of the merger, any
Prattville stockholder has the right to withdraw his or her demand for appraisal
and to accept the terms offered in the merger agreement.
In appraising the shares of Prattville common stock as to which demands
for appraisal have been received, the Court of Chancery will determine the fair
value of those shares exclusive of any element of value arising from the
completion or expectation of the merger, together with a fair rate of interest.
If any Prattville stockholder who demands appraisal of his or her
shares under Section 262 fails to perfect the demand, or otherwise effectively
withdraws or loses his or her rights to such appraisal, his or her Prattville
common stock will be converted into shares of Whitney common stock in accordance
with the merger agreement.
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Appraisal rights are lost if:
o the merger is abandoned;
o the stockholder of record fails to make a proper,
timely, written demand for appraisal;
o the shares of the stockholder are voted in favor of
the merger;
o neither Whitney nor any Prattville stockholder
exercising his or her appraisal rights files the
required petition with the Delaware Court of Chancery
within 120 days after the effective date of the
merger;
o the stockholder timely withdraws his or her demand
for appraisal; or
o the stockholder fails to submit his or her Prattville
stock certificates to the Court upon request.
You must do all of the things described in this section and as set
forth in Section 262 of the DGCL in order to preserve your appraisal rights and
to receive the fair value of your shares in cash (as determined by the Court of
Chancery). If you do not follow each of the steps as described above, you will
have no right to receive cash for your shares. In view of the complexity of
these provisions of Delaware law, Prattville stockholders who are considering
dissenting from the approval of the merger agreement and exercising their
appraisal rights should consult their legal advisors.
INFORMATION ABOUT PRATTVILLE
DESCRIPTION OF BUSINESS
Prattville is a Delaware corporation and a registered bank holding
company under the Bank Holding Company Act of 1956, as amended. Bank of
Prattville is an Alabama banking corporation. Bank of Prattville conducts a
general commercial banking business in Autauga County, Alabama, through its main
office and branch locations.
COMPETITION
Prattville and Bank of Prattville aggressively compete against five
(AmSouth, Colonial, Regions, SouthTrust, Synovus) state-wide bank holding
companies as well as one (Peoples Bank & Trust Co.) central Alabama holding
company.
In addition to commercial banks, Autauga Country has a branch of a
federal credit union (Maxwell/Gunter) licensed to serve the Autauga, Elmore &
Montgomery County areas. Autauga County also has several local state chartered
credit unions and finance companies.
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Several national and regional stock brokerage and insurance offices are
also represented in Autauga County and offer a variety of products which
directly compete with products and services offered by Prattville and Bank of
Prattville.
SUPERVISION AND REGULATION
Prattville's primary regulator is the Federal Reserve Board with
examinations provided from their office in Atlanta, Georgia. Bank of Prattville
is regulated by the Federal Deposit Insurance Corporation and the State of
Alabama Banking Department. Prattville's subsidiary Key Finance Company, Inc. is
also supervised by the State of Alabama Banking Department.
SEASONALITY OF BUSINESS AND CUSTOMERS
Employment of the residents of Autauga County is diversified.
Approximately 12% are employed in public administration, 12% in professional
services, 17% in manufacturing, 20% in retail sales and 39% in other, which
includes agriculture. This broad-based diversity dramatically reduces major
seasonable fluctuations and dependence on one industry or sector of its economy.
Autauga County is recognized as one of the five fastest growing
counties within the State of Alabama. From 1990 through 1999, total households
increased 29.58% and population increased 25.10%. This growth is primarily
attributed to reasonable costs for real estate, easy access to the interstate
system (I-65 and I-85) and a good county-wide school system.
Prattville provides services to a broad range of customers across
economic levels throughout Autauga County. Average age is 34.92 years and the
average household income for the City of Prattville is $48,297 as compared to
the county average of $44,108. Generally, Prattville's customers are well
educated, technology-literate and demanding of products and services that
complement their lifestyles. Customers of Prattville have been enjoying the
benefits of modern technology such as automatic teller machines since 1979 and
image statements since 1996.
EMPLOYEES
As of the date of this proxy statement-prospectus, Prattville and Bank
of Prattville had 77 full time employees. Prattville and Bank of Prattville
consider their relationship with employees to be good.
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PROPERTIES
The following list describes the location and general character of the
principal properties owned or leased by Prattville and its subsidiaries:
<TABLE>
<CAPTION>
Location Area Owner (1)(2) Use Sq. Feet
-------- ---- ------ --- --------
<S> <C> <C> <C> <C>
124 W. Main Street Prattville BOP BOP main office banking 40,100
facility
1881 East Main Street Prattville PFSC First floor leased to BOP- 5,250
general banking offices.
Second floor leased to BOP- 5,250
administrative offices.
Third floor leased to an
attorney. 5,200
2711 Hwy. 14 West Autaugaville BOP BOP branch banking facility 4,900
144 West Main Street Prattville PFSC Leased to and occupied by 780
Key Finance Co., Inc.
300 Chestnut Street Prattville BOP Leased to and occupied by a 7,680
grocery franchise.
Intersection of U.S. Hwy Pine Level PFSC Potential future branch site. 3.3 acres
31 N. and Autauga Co.
Road 40
159 Tichnor Avenue Prattville R. Musgrove Leased to BOP for 6,000
warehouse space.
1714 E. Main Street Prattville Food World Leased to BOP for an ATM 100
location.
703 S. Memorial Drive Prattville BOP BOP branch facility closed 5,312
10/7/00. Negotiations
underway for sale of this
facility.
</TABLE>
---------------------------------
(1) Legend: BOP Bank of Prattville
PFSC Prattville Financial Services Corporation
(2) Properties currently owned by PSFC will be transferred to BOP prior to
completion of the merger.
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Prattville's management believes that all of its and its subsidiaries'
properties are in generally good condition and are adequate to meet the needs of
the communities they serve.
LEGAL PROCEEDINGS
As of the date of this proxy statement-prospectus, there are no
material pending legal proceedings to which Prattville or any of its
subsidiaries are a party.
Prattville and its subsidiaries are, through the normal course of
business, actively involved in various suits involving matters in which certain
customers have not fulfilled their contractual obligation.
MARKET PRICE AND DIVIDENDS
Market Prices
Since its formation in 1984, Prattville has provided a market for its
stock by establishing a floor price for the purchase of its stock by its
treasury. In 1997 the floor price became the unaudited, internally computed book
value per share, rounded to the nearest $.25, which was calculated as of each
calendar quarter end. The following table shows these floor purchase prices for
the periods indicated:
<TABLE>
<CAPTION>
Company
Date Purchase Price
---- --------------
<S> <C>
September 30, 2000 $24.25
June 30, 2000 $23.00
March 31, 2000 $23.00
December 31, 1999 $22.50
September 30, 1999 $23.25
June 30, 1999 $23.25
March 31, 1999 $24.00
December 31, 1998 $24.00
September 30, 1998 $23.75
June 30, 1998 $23.50
March 31, 1998 $23.25
</TABLE>
Dividends
The following table sets forth, for the periods indicated, the
dividends declared by Prattville. Prattville's ability to declare and pay
dividends after August 8, 2000 is subject to restrictions in the merger
agreement.
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<PAGE> 45
DIVIDENDS DECLARED
<TABLE>
<S> <C>
2000
Third Quarter...................................................$ 0.11
Second Quarter..................................................$ 0.11
First Quarter...................................................$ 0.11
1999
Fourth Quarter..................................................$ 0.16
Third Quarter...................................................$ 0.10
Second Quarter..................................................$ 0.10
First Quarter...................................................$ 0.10
1998
Fourth Quarter..................................................$ 0.15
Third Quarter...................................................$ 0.09
Second Quarter..................................................$ 0.09
First Quarter...................................................$ 0.09
</TABLE>
Holders
As of ____________, 2000, the record date for the meeting, there were
approximately _____ record stockholders of Prattville common stock.
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDERS AND MANAGEMENT OF PRATTVILLE
Principal Stockholders
The following table reflects certain information regarding those
persons Prattville knows to be the beneficial owner of more than five percent of
the outstanding Prattville common stock as of the record date for the meeting.
Unless otherwise indicated, each person listed has sole voting and investment
power with respect to the shares set forth opposite his name.
<TABLE>
<CAPTION>
Name of Number of Shares
Beneficial Owner Beneficially Owned Percent of Class
---------------- ------------------ ----------------
<S> <C> <C>
Albert C. Striplin 299,512 (1) 30.43%
</TABLE>
-------------------------------
(1) Includes 40,170 shares held jointly with wife.
Includes 365 shares held in a self-directed Individual Retirement
Account.
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<PAGE> 46
Includes 128,777 shares held in the 1991 J. B. Striplin Family Trust,
of which Mr. Striplin is trustee.
Includes 130,000 shares held in the Striplin Family Limited Liability
Company, of which Mr. Striplin is manager.
Directors and Executive Officers
The following table sets forth certain information as of the record
date for the meeting concerning the beneficial ownership of Prattville common
stock by each director of Prattville and by all directors and executive officers
of Prattville as a group. Unless otherwise indicated, each person listed in the
table has sole voting and investment power with respect to the shares set forth
opposite his name.
<TABLE>
<CAPTION>
Name of Number of Shares
Beneficial Owner Beneficially Owned Percent of Class
---------------- ------------------ ----------------
<S> <C> <C>
David L. Avant 46,026 (1) 4.68%
Willis J. Bradford 250 *
C. Steve Burton 300 (2) *
J. M. Donovan 14,677 (3) 1.49%
James T. Powell 9,000 *
Larry Puckett 4,166 (4) *
A. C. Striplin 299,512 (5) 30.43%
J. B. Striplin 13,873 (6) 1.41%
Thomas L. Thompson 3,119 (7) *
Milton Wendland 23,270 (8) 2.36%
All directors and executive
officers as a group (10 people) 414,193 42.00%
</TABLE>
----------------------------
*Indicates less than 1%
(1) Includes 4,878 shares held in a self-directed Individual Retirement
Account.
Includes 13,615 shares held in a self-directed Simplified
Employee Retirement Plan.
Includes 5,900 shares held by wife.
Includes 2,440 shares held by wife in a self-directed Individual
Retirement Account.
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<PAGE> 47
Includes 193 shares held by wife in a self-directed Simplified
Employee Retirement Plan.
(2) Includes 100 shares held by a limited liability company of which Mr.
Burton is a financial advisor.
(3) Includes 14,177 shares held jointly with wife.
(4) Includes 2,065 shares held in a self-directed Individual Retirement
Account. Includes 1,101 shares held by wife in a self-directed
Individual Retirement Account.
(5) Includes 40,170 shares held jointly with wife.
Includes 365 shares held in a self-directed Individual Retirement
Account.
Includes 128,777 shares held in the 1991 J. B. Striplin Family Trust,
of which Mr. Striplin is trustee.
Includes 130,000 shares held in the Striplin Family Limited Liability
Company, of which Mr. Striplin is manager.
(6) Includes 13,673 shares held by wife.
(7) Includes 2,000 shares held by wife.
(8) Includes 9,000 shares held jointly with wife.
Includes 13,270 shares held by Autauga Farming Company, Inc., of
which Mr. Wendland is the sole shareholder.
INFORMATION ABOUT WHITNEY
GENERAL
Whitney is a Louisiana corporation registered under the Bank Holding
Company Act of 1956, as amended. Whitney's principal banking subsidiary is
Whitney National Bank. Whitney National Bank is a national banking association
headquartered in New Orleans, Louisiana. It has been engaged in the general
banking business in southern Louisiana continuously since 1883. Whitney
currently provides banking services through over 120 banking locations in the
five-state Gulf Coast region. These locations stretch from Houston, Texas;
across southern Louisiana and the coastal region of Mississippi; through central
and south Alabama; and into the Florida panhandle. Whitney National Bank also
maintains a foreign branch on Grand Cayman in the British West Indies.
Whitney National Bank is a full-service commercial bank that serves
both commercial and retail customers, offering a variety of deposit products and
cash management services, secured and unsecured loan facilities, including
revolving credit products, and commercial transaction financing. Whitney
National Bank also provides trust and investment management services to
retirement benefit plans, corporations and individuals, and offers certain
limited investment brokerage services.
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<PAGE> 48
Whitney Securities, L.L.C. (Member NASD/SIPC), a wholly-owned
subsidiary of Whitney National Bank, provides retail brokerage services. Whitney
Securities offers a broad range of investments, including stocks, treasury and
agency securities, mutual funds, self-directed retirement accounts and tax-free
investments.
At September 30, 2000, Whitney had consolidated total assets of
approximately $6.0 billion, consolidated total deposits of approximately $4.6
billion and consolidated shareholders' equity of approximately $587 million.
Whitney's and Whitney National Bank's principal executive offices are located at
228 St. Charles Avenue, New Orleans, Louisiana 70130, and Whitney's telephone
number is (504) 586-7117.
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 southeast Texas through the Florida panhandle. Thus, at any particular
point in time, including the date of this proxy statement-prospectus,
discussions and, in some cases, negotiations and due diligence activities
looking toward or culminating in the execution of preliminary or definitive
documents respecting potential acquisitions may occur or be in progress. These
transactions may involve Whitney acquiring such financial institutions in
exchange for cash or capital stock. Depending on their terms, these transactions
may have a dilutive effect upon the Whitney common stock to be issued in the
merger.
Since January 1, 2000, Whitney has completed acquisitions of two
financial institutions (one in Texas and one in Louisiana), which had total
assets of approximately $278 million. As of the date of this proxy
statement-prospectus, Whitney has also executed a definitive agreement to
acquire another financial institution in Houston, Texas, which has total assets
of approximately $280 million. That transaction involves a share exchange that
is intended to qualify as a pooling of interests. The pending transaction must
be approved by applicable regulatory authorities and is subject to other
customary conditions. The total combined assets of Prattville and the financial
institutions party to these pending and completed acquisitions do not exceed 20%
of Whitney's total assets, and the total number of shares of Whitney common
stock issued or to be issued in these transactions do not exceed 20% of
Whitney's outstanding common stock.
MARKET PRICES OF AND DIVIDENDS DECLARED ON WHITNEY COMMON STOCK
Whitney common stock is included for quotation on the Nasdaq Stock
Market 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 Stock Market and the quarterly dividends
declared for each such period. Dividend information represents the historical
amounts declared by Whitney, unadjusted for dividends declared by pooled
entities.
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<PAGE> 49
PRICE RANGE OF COMMON STOCK AND QUARTERLY DIVIDENDS
<TABLE>
<CAPTION>
HIGH LOW DIVIDEND
---- --- --------
<S> <C> <C> <C>
2000
Third Quarter............ $37.19 $33.38 $0.36
Second Quarter........... $39.13 $31.75 $0.36
First Quarter............ $36.66 $31.50 $0.36
1999
Fourth Quarter........... $39.25 $33.50 $0.33
Third Quarter............ $39.75 $33.25 $0.33
Second Quarter........... $41.75 $35.63 $0.33
First Quarter............ $38.25 $32.19 $0.33
1998
Fourth Quarter........... $41.88 $35.75 $0.30
Third Quarter............ $51.25 $36.63 $0.30
Second Quarter........... $62.38 $50.00 $0.30
First Quarter............ $63.38 $51.13 $0.30
</TABLE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that Whitney has filed or will file with the
SEC (File No. 0-1026) are incorporated by reference in this proxy
statement-prospectus:
o its Annual Report on Form 10-K for the year ended
December 31, 1999;
o its Quarterly Reports on Form 10-Q for the quarters
ended March 31, June 30 and September 30, 2000;
o the description of Whitney common stock set forth in
Whitney's registration statement under the Securities
Exchange Act of 1934, as updated and modified in its
entirety by Whitney's Current Report on Form 8-K
filed with the SEC on January 19, 1996; and
o all documents filed by Whitney with the SEC 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 Prattville stockholders
meeting will be deemed to be incorporated by
reference in this proxy statement-prospectus from the
date they are filed. Any statement contained in a
document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or
superseded for
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<PAGE> 50
purposes of this proxy statement-prospectus to the
extent that a statement contained herein or in any
other subsequently filed document which is also or is
deemed to be incorporated by reference herein
modifies or supersedes such statement.
If you are a beneficial owner of Prattville common stock and would like
a copy of any of the information incorporated by reference in this proxy
statement-prospectus other than exhibits to such information (unless such
exhibits are specifically incorporated by reference into such information),
Whitney will provide it to you without charge.
If you would like to receive any of this information, please call,
write or e-mail Whitney at:
Investor Relations
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, Louisiana 70130
Telephone: (504) 586-3627
E-mail: [email protected]
You should make your request before ________________, 2000 in order to
receive the information prior to the meeting.
OTHER MATTERS
Prattville's management is not aware of any other matters to be brought
before the meeting. However, if any other matters are properly brought before
the meeting, the persons named in the enclosed forms of proxy will have
discretionary authority to vote all proxies with respect to such matters in
accordance with their judgment.
LEGAL MATTERS
Phelps Dunbar, L.L.P., New Orleans, Louisiana, has provided an opinion
as to the validity of the shares of common stock that Whitney will issue in the
merger.
EXPERTS
The consolidated financial statements of Whitney and its subsidiaries
as of December 31, 1999 and 1998 and for each of the three years in the period
ended December 31, 1999 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 incorporated by reference herein in reliance upon the authority of Arthur
Andersen LLP as experts in accounting and auditing in giving such report.
The opinion regarding the tax treatment of the merger, which is filed
as an exhibit to the registration statement of which this proxy
statement-prospectus forms a part, has been rendered
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<PAGE> 51
by Arthur Andersen LLP, independent public accountants, and has been referred to
herein in reliance upon the authority of such firm as experts in giving said
opinion.
The enclosed proxy is solicited by Prattville's board of directors. The
board urges you to sign the enclosed proxy and return it promptly in the
enclosed envelope.
BY ORDER OF THE BOARD OF DIRECTORS OF
PRATTVILLE FINANCIAL SERVICES CORPORATION
Albert C. Striplin, Secretary
IMPORTANT NOTICE FOR PRATTVILLE STOCKHOLDERS
IF YOU CANNOT LOCATE YOUR PRATTVILLE COMMON STOCK CERTIFICATE(S),
PLEASE CONTACT ALBERT C. STRIPLIN, SECRETARY, AT BANK OF PRATTVILLE, 124 W. MAIN
STREET, PRATTVILLE, ALABAMA, 36067, TELEPHONE NUMBER (334) 361-3300. IF YOU HAVE
MISPLACED YOUR STOCK CERTIFICATES OR IF YOU HOLD CERTIFICATES IN NAMES OTHER
THAN YOUR OWN AND WISH TO VOTE IN PERSON AT THE PRATTVILLE SPECIAL MEETING, WE
ENCOURAGE YOU TO RESOLVE THOSE MATTERS BEFORE THE MEETING.
PLEASE DO NOT SEND YOUR PRATTVILLE STOCK CERTIFICATES AT THIS TIME.
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<PAGE> 52
HOW TO OBTAIN ADDITIONAL INFORMATION
Whitney is a publicly traded company and is required to file certain
reports, proxy statements and other information with the SEC. The SEC maintains
a web site on the Internet that contains reports, proxy statements and other
information about public companies, including Whitney. The address of that site
is Http://www.sec.gov. You may also read and copy any materials filed with the
SEC by Whitney at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330.
Whitney has filed a registration statement on Form S-4 with the SEC
that registers the Whitney common stock to be issued in the merger. This proxy
statement-prospectus does not contain all of the information in the registration
statement. Please refer to the registration statement for further information
about Whitney and the Whitney common stock to be issued in the merger.
Statements contained in this proxy statement-prospectus concerning the
provisions of certain documents included in the registration statement are not
necessarily complete. A complete copy of each document is filed as an exhibit to
the registration statement. You may obtain copies of all or any part of the
registration statement, including exhibits thereto, upon payment of the
prescribed fees, at the offices of the SEC listed above.
Whitney has supplied all of the information contained in this proxy
statement-prospectus relating to Whitney and Whitney National Bank. Prattville
has supplied all of the information relating to Prattville, Bank of Prattville
and their subsidiaries.
This proxy-statement-prospectus incorporates by reference important
business and financial information about Whitney that is not included in or
delivered with the proxy statement-prospectus. That information is available
without charge upon your request to:
Investor Relations
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, Louisiana 70130
Telephone: (504) 586-3627
E-mail: [email protected]
YOU SHOULD MAKE YOUR REQUEST BEFORE ___________________, 2000 IN ORDER
TO RECEIVE THE INFORMATION PRIOR TO THE MEETING.
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<PAGE> 53
APPENDIX A
AGREEMENT AND PLAN OF MERGER
<PAGE> 54
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made August 8, 2000,
between Whitney Holding Corporation ("Whitney"), a Louisiana corporation and
Whitney National Bank ("WNB"), a national banking association, on the one hand,
and Prattville Financial Services Corporation ("Holding"), a Delaware
corporation, and Bank of Prattville (the "Bank"), an Alabama chartered state
bank, 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") on the
terms and subject to the conditions set forth in this Agreement. The boards of
directors of WNB and the Bank have each determined that it is desirable and in
the best interests of each such institution and its respective sole shareholder
that the Bank merge into WNB (the "Bank Merger") on the terms and subject to the
conditions set forth in this Agreement and the Bank Merger Agreement (as
hereinafter defined). The Company Merger and the Bank Merger shall be
hereinafter collectively referred to as the "Mergers".
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) Subject to the terms and conditions of this Agreement, at the
Effective Time (as hereinafter defined), Holding shall be merged with and into
Whitney, which will be the surviving corporation, in accordance with the
Louisiana Business Corporation Law (the "LBCL") and the Delaware General
Corporation Law (the "DGCL"), and the separate corporate existence of Holding
shall thereupon cease.
(b) Prior to the Effective Date, unless Whitney elects to delay the
Bank Merger in accordance with the proviso contained in Section 1.02 hereof, the
Boards of Directors of WNB and the 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, the Bank will merge with and into WNB, which shall be the
surviving bank.
(c) Effects of Mergers. The Company Merger shall have the effects set
forth in the LBCL and the DGCL, as applicable. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time (as hereinafter
defined), all the property and assets, rights, privileges and all debts,
liabilities and obligations of Holding will become the property and assets,
rights, privileges, 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 and the banking laws of the State
of Alabama. 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 the Bank will
become the property and assets, rights, privileges, debts, liabilities and
obligations of WNB 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 9:00
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
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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 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, opinions and other items required by Section 6 shall
be delivered, (c) Whitney and Holding shall, as applicable, execute a
certificate of merger complying with the requirements of Section 112(F) of the
LBCL (the "LA Certificate of Merger") and a certificate of merger complying with
the requirements of Section 103 of the DGCL (the "DE Certificate of Merger"),
(d) the appropriate officers of the parties shall execute, deliver and
acknowledge the Bank Merger Agreement and (e) the parties shall take such
further action as is required to effect the Company Merger and the Bank Merger
and to otherwise consummate the transactions contemplated by this Agreement and
the Bank Merger Agreement; 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 (the "OCC"). 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
Section 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 LA
Certificate of Merger shall be filed with and recorded by the Secretary of State
of Louisiana and the DE Certificate of Merger shall be filed with and recorded
by the Secretary of State of Delaware. The Company Merger will be effective on
the date (the "Effective Date") and time (the "Effective Time") specified in the
LA Certificate of Merger. Subject to Section 1.02, the Bank Merger Agreement
will be filed with and recorded by the OCC and the appropriate filing offices in
the State of Alabama, and the Bank Merger shall be effective at the date and
time specified in the Bank Merger Agreement.
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 (as hereinafter defined in Section 2.01) shall be
converted as set forth in Section 2.
(b) Bank Merger. The Articles of Association and Bylaws of WNB, 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 WNB as the surviving entity in the Bank Merger. The directors and
officers of WNB at the effective time of the Bank Merger shall be the directors
and officers of WNB 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 the Bank
shall be canceled and (ii) the shares of capital stock of WNB 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.
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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.
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 $1.00 per share ("Holding
Common Stock") shall be converted as follows:
(a) Exchange Ratio. Except for (i) shares of Holding Common Stock
issued and outstanding immediately prior to the Effective Time as to which
appraisal rights have been perfected and not withdrawn or other forfeited under
Section 262, et seq of the DGCL ("Appraisal Shares") and (ii) shares held by
Holding as treasury shares, which shall by reason of the Company Merger be
canceled ("Treasury Shares"), 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 obtained by dividing the Maximum
Deliverable Amount (as hereinafter defined), rounded up to the nearest whole
number of shares, by the total number of issued and outstanding shares (not
Treasury Shares) of Holding Common Stock at the Effective Time.
(i) Purchase Price. The term "Purchase Price" means
$38,700,000.00, plus Retained Net Income After Tax and the Prattmont Branch Gain
(as hereinafter defined, respectively).
(ii) Maximum Deliverable Amount. The term "Maximum Deliverable
Amount" means the quotient obtained by dividing the Purchase Price by the
Average Market Price (as hereinafter defined).
(iii) Retained Net Income After Tax. The term "Retained Net
Income After Tax" means the consolidated retained net income for the period
beginning April 1, 2000 through the end of the calendar month immediately
preceding the Effective Date, as agreed to by the Constituent Corporations,
based on normal operating net income MINUS (x) appropriate income taxes accrued
and dividends declared and/or paid and (y) any unusual or nonrecurring additions
to net income such as reversals of loan loss or other valuation reserves and
gains on the sales of investments or other assets. Retained Net Income After Tax
shall reflect (and be reduced by) any unusual or nonrecurring deductions from
net income such as higher than usual provisions for loan losses or payments for
settlements of litigation. Retained Net Income After Tax shall not be reduced by
the Bank's expenses for legal counsel, accounting services and/or an investment
advisor incurred in connection with the Merger, provided such expenses do not
exceed, in the aggregate, $425,000.00; any expenses in excess of such limit
shall reduce Retained Net Income After Tax on a dollar for dollar basis.
Retained Net Income After Tax shall also not be reduced by the Bank's reasonable
fees and expenses, incurred in connection with the satisfaction of the condition
set forth in Subsection 6.02(i) of this Agreement; provided, however, that the
Bank shall obtain Whitney's prior written approval of all such fees and
expenses.
(iv) Prattmont Branch Gain. The term "Prattmont Branch Gain"
means the tax effected gain as recognized for book purposes on the sale of the
Prattmont Branch located at 703 S. Memorial Drive, Prattville, AL.
(v) 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) (the "Trading Price") on the twenty-five (25) trading days
preceding the fifth trading day immediately prior to the Effective
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Date, as reported in the Wall Street Journal (corrected for typographical
errors); provided, however, that if (x) Whitney issues a press release at any
time prior to the Effective Date announcing that it is negotiating or has
executed a definitive merger or other acquisition agreement as a result of which
Whitney will cease to be an independent, publicly traded company and (y) Whitney
has not thereafter issued a press release announcing the termination of such
negotiations or definitive agreement prior to the Closing, then the "Average
Market Price" shall be the average of the Trading Price on the twenty-five (25)
trading days preceding the tenth trading day immediately prior to the date on
which Whitney issues the first of the applicable press releases referred to in
clause (x) above.
(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 Appraisal Shares and Treasury Shares 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 Appraisal Shares and Treasury Shares,
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 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 after 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, excluding the holders, if any, of Appraisal Shares,
transmittal materials for use in exchanging certificates of Holding Common Stock
for certificates of Whitney Common Stock.
(f) Appraisal Shares. Holders of Appraisal Shares shall not be entitled
to receive the shares of Whitney Common Stock and any unpaid dividends and
distributions payable thereon pursuant to this Section 2.01 and shall only be
entitled to receive payment of the fair value of such shares in accordance with
the provisions of Section 262, et seq of the DGCL unless and until such holders
fail to perfect or effectively withdraw or lose their rights to such appraisal
and payment. If, after the Effective Time, any such holder fails to perfect or
effectively withdraws or loses such right, such shares of Holding Common Stock
will be treated as if they had been converted into, at the Effective Time the
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shares of Whitney Common Stock (and cash in lieu of fractional shares), and any
unpaid dividends and distributions payable thereon, pursuant to this Section
2.01, without interest thereon.
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 the 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 AND THE BANK
Holding and the Bank represent and warrant to Whitney and WNB that,
except as disclosed in the schedule of exceptions delivered by Holding's
consolidated group to Whitney (the "Schedule of Exceptions"), as of the date of
this Agreement and as of the Closing Date:
3.01. CONSOLIDATED GROUP; ORGANIZATION; QUALIFICATION
"Holding's consolidated group," as such term is used in this Agreement,
consists of Holding, the Bank, Key Finance Company of Prattville, Inc., a wholly
owned subsidiary of Holding ("KFCP"), and Key Investment Securities, Inc., a
wholly owned subsidiary of the Bank ("KIS"). The Bank owns 49% of the stock in
Starke Associates, Inc., an Alabama corporation ("SAI"). Holding is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is a bank holding company within the meaning of the
Bank Holding Company Act of 1956, as amended (the "Bank Holding Company Act").
The Bank is an Alabama chartered state bank, duly organized, validly existing
and in good standing under the laws of the State of Alabama and is domiciled in
the State of Alabama. KFCP and KIS are corporations duly organized, validly
existing and in good standing under the laws of the State of Alabama. 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 Bank Merger
Agreement 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 (as
hereinafter defined) on such member's financial condition, results of operations
or business. For purposes of this Agreement, "Material Adverse Effect" shall
mean, with respect to Holding's consolidated group, any effect or effects which
taken individually or in the aggregate are, or can reasonably be expected to be,
material and adverse to its financial condition, results of operations or
business, provided, however, that "Material Adverse Effect" shall not be deemed
to include (a) any change occurring after the date hereof in any federal or
state law, rule or regulation or in generally accepted accounting principles
("GAAP"), which change affects bank holding companies or Alabama state banks, or
the subsidiaries of either, generally, (b) expenses incurred in connection with
this Agreement and the transactions contemplated hereby (not to exceed
$425,000.00 in the aggregate), (c) actions or omissions of any member of
Holding's consolidated group either specifically permitted under this Agreement
or taken with the prior written consent of Whitney in contemplation of the
transactions contemplated hereby and (d) any effect with respect to any member
of Holding's consolidated group caused, in whole or in part, by Whitney or WNB.
3.02. CAPITAL STOCK; OTHER INTERESTS
The authorized capital stock (i) of Holding consists of 3,000,000
shares of Holding Common Stock, of which 1,000,000 shares are issued, 984,132
shares are outstanding and 15,868 shares are held in its treasury; (ii) of the
Bank consists of 100,000 shares of common stock, $1.00 par value per share
("Bank Common Stock"), of which 100,000 shares are issued and outstanding and 0
shares are held in its treasury; (iii) of KFCP consists of 1,000 shares of
common stock, $1.00 par value per share ("KFCP Common Stock"), of which 1,000
shares are issued and outstanding and 0 shares are
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held in its treasury; and (iv) of KIS consists of 100,000 shares of common
stock, $1.00 par value per share ("KIS Common Stock"), of which 10,000 shares
are issued and outstanding and 0 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. All of the outstanding
shares of capital stock of the Bank and KFCP are owned by Holding, free and
clear of all liens, charges, security interests, mortgages, pledges and other
encumbrances. All of the outstanding shares of capital stock of KIS are owned by
the Bank, free and clear of all liens, charges, security interests, mortgages,
pledges and other encumbrances. All of the shares of stock of SAI owned by the
Bank are owned free and clear of all liens, charges, security interests,
mortgages, pledges and 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 any
subsidiaries (other than the Bank, KFCP and KIS) or any direct or indirect
ownership interest exceeding 5% in any firm, corporation, partnership or other
entity (other than SAI and Guilford Alabama Affordable Housing Fund VII).
3.03. CORPORATE AUTHORIZATION; NO CONFLICTS
Subject to the approval of this Agreement and the Bank Merger Agreement
by the shareholders of Holding and the Bank, respectively, in accordance with
the DGCL 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
Bank Merger Agreement and consummation of the Mergers have been validly and
appropriately taken. Subject to their approval by the shareholders of Holding
and the Bank and to such regulatory approvals as are required by law, this
Agreement and the Bank Merger Agreement are legal, valid and binding obligations
of Holding and the Bank and are enforceable against Holding and the Bank,
respectively, in accordance with the respective terms hereof and thereof, except
that enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, receivership, conservatorship, and other laws now or hereafter in
effect relating to or affecting the enforcement of creditors' rights generally
or the rights of creditors of insured depository institutions, (ii) general
equitable principles and (iii) laws relating to the safety and soundness of
insured depository institutions, and except that no representation is made as to
the effect or availability of equitable remedies or injunctive relief
(regardless of whether such enforceability is considered in a proceeding in
equity or at law). With respect to each member of Holding's consolidated group,
neither the execution, delivery or performance of this Agreement or the Bank
Merger Agreement, 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
(a) Holding has delivered to Whitney true and complete copies of (i)
the audited consolidated balance sheets as of December 31, 1998 and December 31,
1999 of Holding and its consolidated subsidiaries, the related audited
consolidated statements of income, shareholders' equity and cash flows for the
respective years then ended, the related notes thereto, and the reports of its
independent public accountants with respect thereto (collectively, the
"Financial Statements"), (ii) the annual report to the Board of Governors of the
Federal Reserve System ("Federal Reserve Board") for the year ended December 31,
1999, of each member of Holding's consolidated group required to file
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such reports, (iii) all call reports, including all amendments thereto, made to
the Federal Deposit Insurance Corporation (the "FDIC") since December 31, 1998,
of each member of Holding's consolidated group required to file such reports,
(iv) Holding's Annual Report to Shareholders for the year ended 1999 and all
subsequent Quarterly Reports to Shareholders, and (v) all proxy or information
statements (or similar materials) disseminated to Holding's shareholders at any
time since December 31, 1998.
(b) The Financial Statements have been (and all financial statements
delivered to Whitney as required by this Agreement will be) 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 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 forms' 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 Financial Statements (the "Latest Balance
Sheet"), no member of Holding's consolidated group had, nor are any of any such
member's assets subject to, any material liability, commitment, indebtedness or
obligation (of any kind whatsoever, whether absolute, accrued, contingent, known
or unknown, 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 banking regulatory agency, and no report made to
shareholders of Holding since January 1, 1997, 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 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, to
the knowledge of Holding, 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, will
be delivered to Whitney with the Schedule of Exceptions. 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 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 Bank which are likely to require in
accordance with applicable regulatory
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guidelines or GAAP a future material increase in any such provisions for losses
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 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 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 (i) regular
dividends from the date of the Latest Balance Sheet until the Closing Date in
amounts not to exceed $0.11 per share payable quarterly and (ii) a special
annual dividend in an amount not to exceed $0.05 per share payable in January,
2001, conditioned on such annual dividend 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 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,
to the knowledge of Holding or the Bank) 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 leases; 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 $50,000.00 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 the 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 canceled any of its
claims or paid any of its noncurrent obligations or liabilities;
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(i) made any capital expenditure or capital addition or betterment in
excess of $50,000.00;
(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 5% 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
$50,000.00;
(k) except as required in accordance with GAAP, changed any accounting
practice followed or employed in preparing the 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 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, sales and use, 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, other than taxes which are
being contested in good faith and for which adequate reserves have been made on
the Latest Balance Sheet, 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,
county, 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
December 31, 1994. 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
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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 (whether as lessee or lessor), 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) Except for the sale of the Prattmont Branch, 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.
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, bank holding company or other regulatory authority.
(d) No member of Holding's consolidated group is subject to any written
agreement, memorandum or order with or by any bank regulatory authority, bank
holding company regulatory authority or other 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
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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 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 and description of
each and every 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
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 will be
delivered to Whitney concurrently with the Schedule of Exceptions. No such ERISA
Plan or other plan constitutes a defined benefit pension plan or has any
"accumulated funding deficiency" within the meaning of the Code.
(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 WNB 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.
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 will be attached to the Schedule of Exceptions. No member of
Holding's consolidated group is now liable for, nor
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has any such member received 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), and the Bank does not have any reason
to believe that its existing insurance coverage cannot be renewed as and when
the same shall expire, upon terms and conditions standard in the market at the
time renewal is sought as favorable as those presently in effect.
3.13. AGREEMENTS
(a) No member of Holding's consolidated group is a party to:
(i) any collective bargaining agreement;
(ii) any employment or other agreement or contract with or
commitment to any employee other than the employee benefits and plans referred
to in the section of the Schedule of Exceptions that corresponds to Section 3.11
of this Agreement, the agreements, arrangements, policies and practices referred
to in the section of the Schedule of Exceptions that corresponds to subparagraph
(j) of Section 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 in their
respective articles of incorporation or association and by-laws and the minutes
of the Bank Board meeting held on February 15, 2000 (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 in accordance with its terms (excluding enforcement of remedies
following a default) will result in a Material Adverse Effect on 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 Alabama state or national banks,
as applicable to the Bank, or the subsidiaries of either Holding or 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, nor has any
member of Holding's consolidated group been advised by any regulatory agency
that it is considering issuing or requesting any such written agreement,
memorandum, letter, order or decree.
(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 or
of any material agreement, contract or commitment that it enters into after the
date of this Agreement. The Bank is not in material violation of any written
agreement, memorandum, letter, order or decree, formal or informal, with any
federal or state regulatory agency.
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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 without interference or interruption. The
deposits of the 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 and
currently in effect. 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,
1996, engaged in any transaction or series of transactions which, if such member
had been subject to Section 14(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), would be required to be disclosed pursuant to Item
404 of Regulation S-K of the Rules and Regulations of the Securities and
Exchange Commission (the "SEC").
3.17. BROKER'S OR FINDER'S FEES
Except for Alex Sheshunoff & Co. Investment Banking ("Sheshunoff"),
whose fees and right to reimbursement of expenses are as disclosed pursuant to a
contract dated November 12, 1999 (a copy of which has been provided to Whitney),
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
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;
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(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
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 any "hazardous waste" as defined by Ala. Code Section
22-30-3(5) or any "hazardous substance" as defined by Ala. Code Section
22-30A-2(6) or regulations promulgated thereunder; (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 Alabama 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 Alabama 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.
(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 could cause 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 governmental investigations pending or, to
Holding's knowledge, threatened against any member of Holding's consolidated
group.
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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, bank holding company or other 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
The 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 Section 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 WNB
Whitney and WNB represent and warrant to Holding and the Bank that as
of the date of this Agreement 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 WNB. 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. WNB is a national banking
association duly organized and validly existing and in good standing under the
laws of the United States of America. Each of Whitney and WNB 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 Bank Merger Agreement to which it is a party and to consummate
the transactions contemplated hereby and thereby, 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 the financial condition,
results of operations or business of Whitney's consolidated group, taken as a
whole.
4.02. CAPITAL STOCK
As of the date of this Agreement, the authorized capital stock of
Whitney consists of 100,000,000 shares of Whitney Common Stock. As of June 30,
2000, 22,671,223 shares of Whitney Common Stock were issued and outstanding and
1,074,289 shares were held in its treasury. All issued and outstanding shares of
capital stock of Whitney and WNB 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 WNB has been issued
in compliance with all legal
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requirements and any preemptive or similar rights. Whitney owns all of the
issued and outstanding shares of capital stock of WNB 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 WNB, all corporate acts and other proceedings required of Whitney
and WNB for the due and valid authorization, execution, delivery and performance
of this Agreement and the Bank Merger Agreement 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 Bank Merger Agreement are legal,
valid and binding obligations of Whitney and WNB 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 (i) bankruptcy,
insolvency, reorganization, moratorium, receivership, conservatorship, and other
laws now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally or the rights of creditors of insured depository
institutions, (ii) general equitable principles and (iii) laws relating to the
safety and soundness of insured depository institutions, and except that no
representation is made as to the effect or availability of equitable remedies or
injunctive relief (regardless of whether such enforceability is considered in a
proceeding in equity or at law). With respect to each of Whitney and WNB,
neither the execution, delivery or performance of this Agreement or the Bank
Merger Agreement, 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 its 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, 1998 and December 31, 1999 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, 1999 filed with the SEC
(collectively, the "Whitney Financial Statements") and (ii) the unaudited
consolidated balance sheet as of March 31, 2000 of Whitney and its consolidated
subsidiaries and the related unaudited statements of operations and cash flows
for the three-month period then ended, as presented in Whitney's quarterly
report on Form 10-Q for the quarter then ended filed with the SEC (collectively,
the "Whitney Interim Financial Statements").
(b) The Whitney Financial Statements and the Whitney Interim Financial
Statements 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 forms' 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.
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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 this 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,
1997, 1998 and 1999; (b) quarterly report on Form 10-Q for the quarter ended
March 30, 2000; and (c) proxy statements for the years 1998, 1999 and 2000; 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 of 1933, as amended (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, nor has any member of Whitney's consolidated group
been advised by any regulatory agency that it is considering issuing or
requesting any such written agreement, memorandum, letter, order or decree.
4.09. COMMUNITY REINVESTMENT ACT
WNB has complied in all material respects with the provisions of the
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.
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4.10. 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 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 WNB 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 WNB and such representatives with such financial and
operating data and other information of any kind respecting its business and
properties as Whitney and WNB 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
WNB in connection with planning for the efficient and orderly combination of the
parties and the operation of Whitney and WNB (and, if applicable, the Bank)
after consummation of the Company Merger. In the event of termination of this
Agreement prior to the Effective Date, Whitney and WNB shall, except to any
extent necessary to assert any rights under this Agreement or the Bank Merger
Agreement, 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 or WNB. Whitney and WNB 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 WNB 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 as described in this Agreement, (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 Bank Merger Agreement, and (d) effect the transactions
contemplated by this Agreement and the Bank Merger Agreement at the earliest
practicable date, subject to Section 5.14(a) and 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, the Exchange Act, the rules and regulations promulgated
thereunder and other applicable federal and state laws, for the purpose of
submitting this Agreement and the transactions contemplated hereby 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
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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 BANK MERGER AGREEMENT
Whitney, as the sole shareholder of WNB, 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 in accordance with past practices following receipt of financial
results covering at least thirty (30) days of post-Merger combined operations of
Whitney to permit the "pooling of interest" restrictions on transfers of Whitney
Common Stock set forth in the Shareholder's Commitments referred to in Section
5.10 to be terminated.
5.06. PRESERVATION OF BUSINESS
Except for the sale of the Prattmont Branch, 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.
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 2000 and the declaration and payment of a special annual
dividend in January 2001 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;
(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 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;
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(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 Section 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, county, 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;
(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 the 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
the 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 with prompt written notice of any material
adverse change in the financial condition, results of operations, business or
prospects of any member of Holding's consolidated group, or any material action
taken or proposed to be taken by any regulatory agency. Holding will provide
Whitney and Whitney will provide Holding with (a) prompt written notice of any
material breach by any member of such party's consolidated group of any of its
warranties, representations or covenants in this Agreement, (b) as soon as they
become available, as to Holding, true
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and complete copies of any examination reports, financial statements, reports
and other documents of the type referred to in Section 3.04, and quarterly
unaudited consolidated balance sheets of Holding and its consolidated
subsidiaries, and the related unaudited statements of income, shareholders'
equity and cash flows for the periods then ended, with respect to each member of
its consolidated group; and, as to Whitney, true and complete copies of
financial statements, reports and other documents of the type referred to in
Sections 4.04 and 4.06, with respect to each member of its consolidated group,
and (c) promptly upon its dissemination, any report disseminated to their
respective shareholders.
5.09. HOLDING SHAREHOLDER APPROVAL
Holding's Board of Directors shall submit this 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 the 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 Section 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, no later than 20 days
after the execution of this Agreement, an agreement from each person who is a
director or executive officer of Holding or a 5% beneficial owner of securities
of Holding 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
Holding Common Stock or 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 or
tax-free reorganization 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 post-Merger combined operations following the Effective Date
and (iii) in the case of directors and executive officers, will (a) agree to
vote in favor of this Agreement and the Company Merger all shares registered in
their name individually or as to which they otherwise have sole voting power and
(b) to use their best efforts, subject to any fiduciary duty they may have, to
cause all shares as to which they share voting power with others to be voted in
favor of this Agreement and the Company Merger (the "Shareholder's Commitment").
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
will be provided to Whitney concurrently with the Schedule of Exceptions,
provided that this covenant shall not prohibit the 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 other 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 member of Holding's consolidated group
shall
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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 the Bank from taking any action that the Board of Directors of Holding or the
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; provided, however, that Whitney shall not be
required to file the Registration Statement until Whitney determines that any
offerings of Whitney Common Stock being made by Whitney pursuant to Section 4(2)
of the Securities Act (as disclosed to Holding) are either completed or
terminated. Subject to the foregoing proviso, 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 any losses, claims, damages, liabilities or judgments, joint or
several, to which they or 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
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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 Bank Merger Agreement.
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 this
Agreement and the Bank Merger Agreement to have been paid to the person with
respect to whom such deduction and withholding was made.
5.19. NASDAQ STOCK MARKET
Whitney shall cause the shares of Whitney Common Stock to be issued in
the Company Merger to be duly authorized, validly issued, fully paid and
non-assessable, free of any preemptive or similar right and to be approved for
quotation in the Nasdaq Stock Market National Market System prior to or at the
Effective Time.
5.20. CONTINUING INDEMNITY; INSURANCE
Whitney covenants and agrees that:
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(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 the
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 Company Merger 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 agrees to allow Holding, at its option, to cause the
persons serving as officers or directors of Holding or the 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 the 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 the aggregate premium for such insurance shall not exceed $25,505. Holding
may, at its option, substitute other policies of no greater coverage and amounts
containing terms and conditions which are no more advantageous to such directors
and officers, if continued coverage under existing policies is not available.
(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.
(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
All employees of Holding and the Bank at the Effective Time shall
become or remain employees of the Bank upon consummation of the Company Merger,
and upon consummation of the Bank Merger all employees of the Bank at the
effective time of the Bank Merger shall become employees of WNB. Although
Whitney and WNB will use their best efforts to retain Holding's and the Bank's
employees either in their existing positions or other positions in the Whitney
system, Whitney, the Bank and WNB reserve 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 the
Bank
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shall be eligible for such employee benefits as are generally available to
employees of WNB 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 WNB's
Compensation Committee and (ii) all Holding and the Bank employees who are
employed at the Effective Time shall be given full credit for all prior service
as employees of Holding or the Bank provided, however, that all such employees
shall be treated as newly hired WNB employees (i.e., prior service credit with
Holding and the Bank shall not be considered in determining future benefits
under Whitney's or WNB's defined benefit pension plan) for all purposes of
Whitney's or WNB's defined benefit pension plan.
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
the 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.
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 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 this Agreement or the Bank Merger
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 this
Agreement or the Bank Merger 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
Bank Merger Agreement and this Agreement shall have been fulfilled; all
appropriate orders, consents and approvals from all regulatory agencies and
other governmental authorities
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whose order, consent or approval is required by law for the consummation of the
transactions contemplated by this Agreement and the Bank Merger Agreement 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 AND WNB
The obligations of Whitney and WNB 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 the 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 the Bank shall have in all material respects performed all
obligations and complied with all covenants required by this Agreement and the
Bank Merger Agreement to be performed or complied with by it at or prior to the
Closing. In addition, each of Holding and the Bank shall have delivered to
Whitney and WNB its certificate dated as of the Closing Date and signed by its
President and chief accounting officer to the foregoing effect and 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 Effect. There shall not have occurred any
Material Adverse Effect on Holding's consolidated group from the date of the
Latest Balance Sheet to the Closing Date.
(c) Accountants' Letters. Whitney shall have received "comfort" letters
from Jackson Thornton & Co., P.C. ("JT & Co."), 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 and WNB shall have received from
Kaufman & Rothfeder, P.C., special counsel to Holding, opinions, dated as of the
Closing Date, customary in scope and in form and substance satisfactory to
Whitney and WNB. 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; and, as to matters of law other
than Alabama or federal law, on the opinions of foreign counsel retained by them
or Holding.
(e) Tax Consequences of Mergers. Whitney shall have received
satisfactory assurances from its independent accountants that the consummation
of the Mergers will not be a taxable event to Whitney and WNB.
(f) Pooling of Interest. Within thirty (30) days after the date hereof
and within three (3) days prior to the Closing Date, JT & Co. shall have
rendered an opinion to Whitney, in form and substance satisfactory to Whitney,
to the effect that, based upon the facts and circumstances then known to JT &
Co. (with regard to each member of Holding's consolidated group, but excluding
facts and circumstances related to Whitney), 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 Bank Merger Agreement do not qualify for
pooling of interests accounting treatment based upon facts and circumstances
related to any member of Holding"s consolidated group.
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(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 5% or more of Holding Common Stock
outstanding; 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
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; in each case to the extent necessary to ensure, in the reasonable
judgment of Whitney, that the Mergers will be accounted for as a pooling of
interests under GAAP and to promote compliance with Rule 145 under the
Securities Act.
(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.
(i) Transfer of Assets from Holding. All real estate held by Holding
shall be transferred to the Bank on the Closing Date immediately prior to the
Effective Time.
(j) Main Office Parking Lot. Within 30 days of the date of this
Agreement, the Bank shall have obtained an extension and modification of that
certain Ground Lease by and between Rose Grouby, et al, as Lessors, and the
Bank, as Lessee, on the parking lot behind the Bank"s Main Office, which lease
is recorded in the Probate Office of Autauga County at RLPY 120, Page 91, on
such terms and conditions as are acceptable to Whitney, including but not
limited to, an initial five year term with three five-year renewal periods.
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:
(a) Representations, Warranties and Covenants. The representations and
warranties of Whitney and WNB 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 WNB shall have in all material respects performed all obligations
and complied with all covenants required by this Agreement and the Bank Merger
Agreement to be performed or complied with by it at or prior to the Closing. In
addition, each of Whitney and WNB shall have delivered to Holding and the Bank
its certificate dated as of the Closing Date and signed by its chief executive
officer and chief financial officer to the foregoing effect and 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 and the Bank shall have received from
Phelps Dunbar LLP, counsel for Whitney and WNB, an opinion, dated as of the
Closing Date, customary in scope and in form and substance satisfactory to
Holding and the Bank. 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 and as to
matters of law other than Louisiana or federal law on the opinions of foreign
counsel retained by them or Whitney.
(c) Fairness Opinion. Holding shall have received letters from
Sheshunoff dated the date of the Proxy Statement 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.
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(d) No Material Adverse Change. There shall not have occurred any
material adverse change from the date of Whitney"s Latest Balance Sheet to the
Closing Date in the financial condition, results of operations or business of
Whitney"s consolidated group taken as a whole.
(e) Acquisition Proposal. Whitney shall not have executed a definitive
merger agreement or other acquisition agreement as a result of which Whitney
would cease to be an independent public company.
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
Section 6.01 hereof and the condition specified in subparagraph (c) of Section
6.03 hereof. The failure to waive any condition hereunder shall not be deemed a
breach of Section 5.02 hereof.
SECTION 7. TERMINATION
7.01. TERMINATION
This Agreement and the Bank Merger Agreement 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 30 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.
(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 January 31, 2001, or (ii) any such
condition cannot be met by January 31, 2001 and has not been waived by each
party in whose favor such condition inures, or (iii) if the Company Merger has
not been consummated by January 31,2001, 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 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 or; (B) either (x) 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 (y) 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
bona fide 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.
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(g) Prior to Notification Date. By Whitney by delivery of a notice to
terminate this Agreement pursuant to Section 5.01.
(h) Preclusion of Pooling. By Whitney, if the number of shares of
Holding Common Stock as to which the holders thereof are, at the time of the
Closing, legally entitled to assert shareholders appraisal rights plus the
number of such shares as to which the holders thereof are entitled to receive
cash payments in lieu of fractional shares exceeds that number of shares Holding
Common Stock that would preclude pooling of interests accounting for the
Mergers.
7.02. EFFECT OF TERMINATION
Upon termination of this Agreement pursuant to this Section 7, the Bank
Merger Agreement shall also terminate, and this Agreement and the Bank Merger
Agreement shall be void and of no effect, and there shall be no liability by
reason of this Agreement or the Bank Merger Agreement, 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 second to last sentence of subsection 5.01, subsections
5.14(b) and (c), Section 7.02, Section 7.03 and Section 8.
7.03. TERMINATION PAYMENT
If this Agreement is terminated by Whitney or Holding pursuant to
subsection 7.01(e)(B) or subsection 7.01(f), then Holding (or its successor)
shall pay or cause to be paid to Whitney upon demand a termination payment of
$1,900,000 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
Bank Merger Agreement 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:
If to Whitney or WNB:
Mr. William L. Marks
Chairman of the Board & CEO
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, Louisiana 70130
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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 the Bank:
Mr. A. C. Striplin
President
Prattville Financial Services Corporation
124 W. Main Street
Prattville, AL 36067
With copies to:
Robert E. L. Gilpin, Esq.
Kaufman & Rothfeder, P.C.
2740 Zelda Road, Suite 300
Montgomery, AL 36106
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
Bank Merger Agreement 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.
8.06. INTEGRATED AGREEMENT
This Agreement, the Bank Merger Agreement, 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.
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8.07. CHOICE OF LAW
The validity of this Agreement and the Bank Merger Agreement, 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, except to the extent that the laws of the State of Alabama or the State
of Delaware require this Agreement and the Bank Merger Agreement to be governed
by the laws of 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
Bank Merger Agreement 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 Bank Merger Agreement, 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 Bank Merger
Agreement, 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 Bank Merger Agreement 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 Section 6.02 or
subparagraph (a) of Section 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 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.
[SIGNATURE LINES OMITTED]
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EXHIBIT 1.01(b) TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT OF MERGER
OF
BANK OF PRATTVILLE
INTO
WHITNEY NATIONAL BANK
THIS AGREEMENT OF MERGER (this "Agreement") is made and entered into as
of this ______ day of ___________________, 200__, between Bank of Prattville, an
Alabama chartered state bank organized under the laws of the State of Alabama,
(the "Bank") and Whitney National Bank, a national banking association organized
under the laws of the United States ("WNB" or the "Receiving Association").
WHEREAS, as required by law, at least a majority of the members of the
respective Boards of Directors of WNB and the Bank (collectively called the
"Merging Associations") deem it advisable that the Bank be merged with and into
WNB (the "Bank Merger"), as provided in this Agreement and in the Agreement and
Plan of Merger dated August ____, 2000 (the "Plan"), among the Merging
Associations, Whitney Holding Corporation, a Louisiana corporation ("Whitney")
of which WNB is a wholly-owned subsidiary, and Prattville Financial Services
Corporation, a Delaware corporation ("Holding"), which is the record and
beneficial owner of 100% of the Bank's outstanding capital stock, which Plan
sets forth, among other things, certain representations, warranties, covenants
and conditions relating to the Bank Merger; and
WHEREAS, as required by law, 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 Office of the Comptroller of the Currency (the
"OCC") and, if necessary, notice to or approval by the Alabama State Banking
Department 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), the Bank shall be merged with and into WNB under the Articles of
Association of WNB, existing Charter No. 14977, pursuant to the provisions of,
and with the effect provided in, 12 U.S.C. "215a, et seq. 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 the 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 submitted by the Merging Associations to, or issued by the Office of the
Comptroller of the Currency (the "Effective Time").
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3. Cancellation of Capital Stock of Bank. At the Effective Time, by
virtue of the Bank Merger, all shares of the capital stock of the Bank, shall be
cancelled.
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, 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. "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 OCC 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 applicable to
contracts made and to be performed wholly with such state, except to the extent
that the laws of the State of Alabama require this Agreement to be governed by
the laws of that state. 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]
A-33
<PAGE> 87
EXHIBIT 6.02(g) TO
AGREEMENT AND PLAN OF MERGER
[Letter from directors, executive officers
and 5% beneficial shareholders of Holding]
[date]
Mr. William L. Marks
Chairman and CEO
Whitney Holding Corporation
228 St. Charles Avenue
New Orleans, La. 70130
Dear Mr. Marks:
In consideration of the benefits I will receive as a shareholder of
Prattville Financial Services Corporation ("Holding") from the Agreement and
Plan of Merger dated August ___, 2000 (the "Agreement") among Holding, Bank of
Prattville, Whitney Holding Corporation ("Whitney") and Whitney National Bank, I
agree as follows:
[If a director or executive officer of Holding: I agree to vote all
shares of Holding common stock that I own beneficially or of record in favor of
approving the Agreement and the merger 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, 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 I will not, without the prior consent of
Whitney, transfer any of my shares of Holding stock prior to the Effective Date,
as that term is set forth in the Agreement, 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 as a pooling of interests. I understand that my transfer of any
shares of Holding common stock and any Whitney common 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 as provided in the preceding paragraph or
except by operation of law, by will, or under the laws of descent and
distribution, sell or otherwise transfer any shares of Holding stock, (or the
Whitney stock which I receive in exchange for my Holding stock) over which I
hold the power to sell, transfer, pledge or otherwise alienate or encumber
until:
a. the merger has become effective and Whitney has published financial
results covering at least 30 days of its combined operations following the
Effective Date, or
b. the Agreement terminates.
I authorize Whitney or its authorized agent to hold the certificates
representing the shares of Whitney common stock into which my shares of Holding
common stock will be converted until the date that I am free to trade those
shares in accordance with the foregoing paragraph. I understand that upon my
delivery of certificates to the Exchange Agent in compliance with Section
2.01(c) of the Agreement, I will have the right to vote the Whitney shares
received in exchange
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<PAGE> 88
therefore and receive dividends in respect thereof during the time that Whitney
or its agent holds the shares under this letter agreement.
I certify that all of the shares of Holding stock of which I hold the
power to sell, transfer, pledge or otherwise alienate or encumber are
represented by the following certificates:
Certificate No. No. of shares
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. This
requirement is satisfied if there is no plan or intention on the part of the
shareholders of Holding to sell or otherwise dispose of Whitney stock to be
received in the Merger in an aggregate amount that would reduce their ownership
to a number of shares of Whitney stock having an aggregate value, at the time of
the Merger, of less than 50% of the total fair market value of the Holding stock
(other than shares held by Holding except in a fiduciary capacity for third
persons) outstanding immediately prior to the Merger. I have no plan or
intention to dispose of a number of shares of Whitney stock to be received by me
in the Merger which would, taking into account any plan or intention on the part
of other former shareholders of Holding to dispose of shares of Whitney stock
received in the Merger, cause the foregoing requirement not to be satisfied.
I also understand the resale or other disposition of Whitney common
stock that I receive may be governed by Rule 145 of the SEC under the Securities
Act of 1933, as amended, which Rule has been explained to me. I agree not to
sell any of the Whitney common stock to be held by me in violation of the
Securities Act of 1933, as amended, 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.
Sincerely,
[Director, Executive Officer or
5% beneficial shareholder]
A-35
<PAGE> 89
APPENDIX B
FAIRNESS OPINION OF ALEX SHESHUNOFF & CO. INVESTMENT BANKING, L.P.
<PAGE> 90
[LETTERHEAD OF ALEX SHESHUNOFF & CO.]
, 2000
-----------------------
Board of Directors
Prattville Financial Services Corporation
124 W. Main Street
Prattville, Alabama 36037-3034
Members of the Board:
You requested that we update our oral opinion given to you on May 23, 2000 as to
the fairness, from a financial point of view, to the holders of the outstanding
shares of common stock of Prattville Financial Services Corporation
("Prattville") of the Merger Consideration, as defined below, in the proposed
merger between Prattville and Whitney Holding Corporation, New Orleans,
Louisiana (the "Corporation"). Pursuant to an Agreement and Plan of Merger dated
August 8, 2000 (the "Merger Agreement"), the Corporation has agreed to exchange
shares of its common stock equal to $38,700,000 plus the retained net income
after tax as defined in the Merger Agreement and plus the after tax gain from
the sale of Prattville's Prattmont branch facility (real estate only) (the
"Merger Consideration") for each outstanding share of Prattville common stock,
subject to possible adjustment as determined by a formula contained in the
Merger Agreement. Pursuant to the Merger Agreement, Prattville will be merged
with and into the Corporation (the "Merger").
As of the date of this opinion, the sale of the Prattmont branch anticipated in
the Merger Agreement did not close and no valid sale is now pending. Therefore,
we have not assumed any gain from a sale of the Prattmont branch in determining
the Merger Consideration for the purposes of this opinion.
Alex Sheshunoff & Co. Investment Banking, LP ("Sheshunoff") is regularly engaged
in the valuation of securities in connection with mergers and acquisitions,
private placements, and valuations for estate, corporate and other purposes.
In connection with our opinion, we, among other things:
(i) Reviewed the Merger Agreement;
(ii) Evaluated Prattville's consolidated results based upon a
review of its annual financial statements for the three-year
period ending December 31, 1999 and of the year to date ended
June 30, 2000;
(iii) Reviewed Call Report information for the three-year period
ending December 31, 1999 and for the period ending June 30,
2000 for Prattville;
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<PAGE> 91
(iv) Conducted conversations with executive management regarding
recent and projected financial performance of Prattville;
(v) Compared Prattville's recent operating results with those of
certain other banks in the Southeast Region of the United
States (as defined by SNL Securities, LC) that have recently
been acquired;
(vi) Compared Prattville's recent operating results with those of
certain other banks located in the United States that have
recently been acquired;
(vii) Compared the pricing multiples for Prattville in the Merger to
those of certain other banks in the Southeast Region of the
United States (as defined by SNL Securities, LC) that have
recently been acquired;
(viii) Compared the pricing multiples for Prattville in the Merger to
those of certain other banks located in the United States that
have recently been acquired;
(ix) Analyzed the net present value of the after-tax cash flows
Prattville could produce through the year 2004, based on
assumptions provided by management;
(x) Performed an affordability analysis based on the projections
of earnings for the combined entity subsequent to the Merger;
(xi) Reviewed the historical stock price data and trading volume of
Whitney common stock and the lack of any active market for the
common stock of Prattville; and
(xii) Performed such other analyses as it deemed appropriate.
We assumed and relied upon, without independent verification, the accuracy and
completeness of the information provided to us by Prattville for the purposes of
this opinion. In addition, where appropriate, we relied upon publicly available
information that we believe to be reliable, accurate, and complete; however, we
cannot guarantee the reliability, accuracy, or completeness of any such publicly
available information.
We did not make an independent evaluation of the assets or liabilities of
Prattville or the Corporation, nor were we furnished with any such appraisals.
We are not experts in the evaluation of loan portfolios for the purposes of
assessing the adequacy of the allowance for loan and lease losses and assumed
that such allowances for each of the companies are, in the aggregate, adequate
to cover such losses.
We assumed that all required regulatory approvals will be received in a timely
fashion and without any conditions or requirements that could adversely affect
the Merger or the Corporation's operations following the Merger.
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<PAGE> 92
Our opinion is necessarily based on economic, market, and other conditions as in
effect on, and the information made available to us as of, the date thereof.
Events occurring after the date hereof could materially affect the assumptions
used in preparing this opinion.
Our opinion is limited to the fairness of the Merger Consideration, from a
financial point of view, to the holders of Prattville common stock. Moreover,
this letter and the opinion expressed herein do not constitute a recommendation
to any stockholder as to any approval of the Merger or the Merger Agreement. It
is understood that this letter is for the information of the Board of Directors
of Prattville and may not be used for any other purpose without our prior
written consent.
Based on the foregoing and such other matters we have deemed relevant, it is our
opinion, as of the date hereof, that the Merger Consideration to be received by
the Prattville stockholders pursuant to the Merger is fair, from a financial
point of view.
Very truly yours,
ALEX SHESHUNOFF & CO.
INVESTMENT BANKING, LP
B-3
<PAGE> 93
APPENDIX C
SECTION 262 OF THE DELAWARE GENERAL CORPORATION LAW
<PAGE> 94
SECTION 262. APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds shares of
stock on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to Section 228
of this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and the
words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions thereof,
solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to Section 251 (other than a merger effected pursuant to "
251(g) of this title), Section 252, Section 254, Section 257, Section 258,
Section 263, or Section 264 of this title:
(1) Provided, however, that no appraisal rights under this
section shall be available for the shares of any class or series of
stock, which stock, or depository receipts in respect thereof, at the
record date fixed to determine the stockholders entitled to receive
notice of and to vote at the meeting of stockholders to act upon the
agreement of merger or consolidation, were either (i) listed on a
national securities exchange or designated as a national market system
security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000
holders; and further provided that no appraisal rights shall be
available for any shares of stock of the constituent corporation
surviving a merger if the merger did not require for its approval the
vote of the stockholders of the surviving corporation as provided in
subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection,
appraisal rights under this section shall be available for the shares
of any class or series of stock of a constituent corporation if the
holders thereof are required by the terms of an agreement of merger or
consolidation pursuant to Sections 251, 252, 254, 257, 258, 263 and 264
of this title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or resulting
from such merger or consolidation, or depository receipts in
respect thereof;
b. Shares of stock of any other corporation, or depository
receipts in respect thereof, which shares of stock (or
depository receipts in respect thereof) or depository receipts
at the effective date of the merger or consolidation will be
either listed on a national securities exchange or designated
as a national market system security on an interdealer
quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
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c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of
this paragraph; or
d. Any combination of the shares of stock, depository receipts
and cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a., b. and
c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware
corporation party to a merger effected under Section 253 of this title
is not owned by the parent corporation immediately prior to the merger,
appraisal rights shall be available for the shares of the subsidiary
Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation
that appraisal rights under this section shall be available for the shares of
any class or series of its stock as a result of an amendment to its certificate
of incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision,
the procedures of this section, including those set forth in subsections (d) and
(e) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal
rights are provided under this section is to be submitted for approval
at a meeting of stockholders, the corporation, not less than 20 days
prior to the meeting, shall notify each of its stockholders who was
such on the record date for such meeting with respect to shares for
which appraisal rights are available pursuant to subsection (b) or (c)
hereof that appraisal rights are available for any or all of the shares
of the constituent corporations, and shall include in such notice a
copy of this section. Each stockholder electing to demand the appraisal
of such stockholder's shares shall deliver to the corporation, before
the taking of the vote on the merger or consolidation, a written demand
for appraisal of such stockholder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of
the stockholder and that the stockholder intends thereby to demand the
appraisal of such stockholder's shares. A proxy or vote against the
merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate
written demand as herein provided. Within 10 days after the effective
date of such merger or consolidation, the surviving or resulting
corporation shall notify each stockholder of each constituent
corporation who has complied with this subsection and has not voted in
favor of or consented to the merger or consolidation of the date that
the merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to
Section 228 or Section 253 of this title, each constituent corporation,
either before the effective date of the merger or consolidation or
within ten days thereafter, shall notify each of the holders of any
class or series of stock of such constituent corporation who are
entitled to appraisal rights of the approval of the merger or
consolidation and that appraisal rights are available for any or all
shares of such class or series of stock of such constituent
corporation, and shall include in such notice a copy of this section;
provided that, if the notice is given on or after the effective date of
the merger or consolidation, such notice shall be given by the
surviving or resulting
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corporation to all such holders of any class or series of stock of a
constituent corporation that are entitled to appraisal rights. Such
notice may, and, if given on or after the effective date of the merger
or consolidation, shall, also notify such stockholders of the effective
date of the merger or consolidation. Any stockholder entitled to
appraisal rights may, within 20 days after the date of mailing of such
notice, demand in writing from the surviving or resulting corporation
the appraisal of such holder's shares. Such demand will be sufficient
if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation,
either (i) each such constituent corporation shall send a second notice
before the effective date of the merger or consolidation notifying each
of the holders of any class or series of stock of such constituent
corporation that are entitled to appraisal rights of the effective date
of the merger or consolidation or (ii) the surviving or resulting
corporation shall send such a second notice to all such holders on or
within 10 days after such effective date; provided, however, that if
such second notice is sent more than 20 days following the sending of
the first notice, such second notice need only be sent to each
stockholder who is entitled to appraisal rights and who has demanded
appraisal of such holder's shares in accordance with this subsection.
An affidavit of the secretary or assistant secretary or of the transfer
agent of the corporation that is required to give either notice that
such notice has been given shall, in the absence of fraud, be prima
facie evidence of the facts stated therein. For purposes of determining
the stockholders entitled to receive either notice, each constituent
corporation may fix, in advance, a record date that shall be not more
than 10 days prior to the date the notice is given, provided, that if
the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no
record date is fixed and the notice is given prior to the effective
date, the record date shall be the close of business on the day next
preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw such stockholder"s demand for appraisal and to accept the terms offered
upon the merger or consolidation. Within 120 days after the effective date of
the merger or consolidation, any stockholder who has complied with the
requirements of subsections (a) and (d) hereof, upon written request, shall be
entitled to receive from the corporation surviving the merger or resulting from
the consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10 days
after such stockholder"s written request for such a statement is received by the
surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a
copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the
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surviving or resulting corporation, the petition shall be accompanied by such a
duly verified list. The Register in Chancery, if so ordered by the Court, shall
give notice of the time and place fixed for the hearing of such petition by
registered or certified mail to the surviving or resulting corporation and to
the stockholders shown on the list at the addresses therein stated. Such notice
shall also be given by 1 or more publications at least 1 week before the day of
the hearing, in a newspaper of general circulation published in the City of
Wilmington, Delaware or such publication as the Court deems advisable. The forms
of the notices by mail and by publication shall be approved by the Court, and
the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the
Court shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted
such stockholder"s certificates of stock to the Register in Chancery, if such is
required, may participate fully in all proceedings until it is finally
determined that such stockholder is not entitled to appraisal rights under this
section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to the
stockholders entitled thereto. Interest may be simple or compound, as the Court
may direct. Payment shall be so made to each such stockholder, in the case of
holders of uncertificated stock forthwith, and the case of holders of shares
represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and
taxed upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation,
no stockholder who has demanded appraisal rights as provided in subsection (d)
of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other
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distributions payable to stockholders of record at a date which is prior to the
effective date of the merger or consolidation); provided, however, that if no
petition for an appraisal shall be filed within the time provided in subsection
(e) of this section, or if such stockholder shall deliver to the surviving or
resulting corporation a written withdrawal of such stockholder"s demand for an
appraisal and an acceptance of the merger or consolidation, either within 60
days after the effective date of the merger or consolidation as provided in
subsection (e) of this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal shall cease.
Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery
shall be dismissed as to any stockholder without the approval of the Court, and
such approval may be conditioned upon such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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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 and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful.
The indemnification provisions of the LBCL are not exclusive; however,
no corporation may indemnify any person for willful or intentional misconduct. A
corporation has the power to obtain and maintain insurance, or to create a form
of self-insurance on behalf of any person who is or was acting for the
corporation, regardless of whether the corporation has the legal authority to
indemnify the insured person against such liability.
The Articles of Incorporation and By-laws of Whitney Holding
Corporation ("Whitney") 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 of 1933, as amended (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:
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
2 The Plan of Merger (included in the
registration statement as Appendix A and
incorporated herein by reference).
4.1 Articles of Incorporation of the Registrant,
as amended (filed with the Commission as
Exhibit 3.1 to the Registrant's Quarterly
Report
</TABLE>
II-1
<PAGE> 100
<TABLE>
<S> <C>
on Form 10-Q for the quarter ended September
30, 2000 (File No. 0-1026) and incorporated
herein by reference).
4.2 By-laws of the Registrant as amended through
May 24, 2000 (Filed with the Commission as
Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended
September 30, 2000 (File No. 0-1026) and
incorporated herein by reference).
5 Opinion of Phelps Dunbar, L.L.P. as to the
legality of the securities being registered.
8 Form of opinion of Arthur Andersen LLP as to
certain tax matters.
23.1 Consent of Arthur Andersen LLP dated
November 21, 2000.
23.2 Consent of Alex Sheshunoff & Co. Investment
Banking, L.P. dated November 20, 2000.
23.3 Consent of Phelps Dunbar, L.L.P., included
in Exhibit 5.
24 Powers of Attorney of directors of the
Registrant (contained on page S-1 of the
registration statement).
99 Form of Proxy of Prattville Financial
Services Corporation.
</TABLE>
(b) Financial Statement Schedules
None
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, 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.
II-2
<PAGE> 101
(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> 102
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New
Orleans, State of Louisiana, on this 17th day of November, 2000.
WHITNEY HOLDING CORPORATION
By: /s/ William L. Marks
-------------------------------
William L. Marks
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints R. King Milling and Thomas L.
Callicutt, Jr., and each or any one of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement,
and to file the same with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ William L. Marks Chairman of the Board
-------------------------------------- and Chief Executive Officer November 17, 2000
William L. Marks
/s/ R. King Milling Director and President November 17, 2000
--------------------------------------
R. King Milling
/s/ Thomas L. Callicutt, Jr. Executive Vice President and
-------------------------------------- Chief Financial Officer November 17, 2000
Thomas L. Callicutt, Jr. (Principal Financial Officer
and Principal Accounting Officer)
/s/ Guy C. Billups, Jr. Director November 17, 2000
--------------------------------------
Guy C. Billups, Jr.
</TABLE>
S-1
<PAGE> 103
<TABLE>
<S> <C> <C>
/s/ Harry J. Blumenthal, Jr. Director November 17, 2000
--------------------------------------
Harry J. Blumenthal, Jr.
/s/ Joel B. Bullard, Jr. Director November 17, 2000
--------------------------------------
Joel B. Bullard, Jr.
/s/ James M. Cain Director November 17, 2000
--------------------------------------
James M. Cain
/s/ Angus R. Cooper, II Director November 17, 2000
--------------------------------------
Angus R. Cooper, II
Director November ____, 2000
--------------------------------------
Robert H. Crosby, Jr.
/s/ Richard B. Crowell Director November 17, 2000
--------------------------------------
Richard B. Crowell
/s/ William A. Hines Director November 17, 2000
--------------------------------------
William A. Hines
/s/ John J. Kelly Director November 17, 2000
--------------------------------------
John J. Kelly
/s/ E. James Kock, Jr. Director November 17, 2000
--------------------------------------
E. James Kock, Jr.
/s/ Alfred S. Lippman Director November 17, 2000
--------------------------------------
Alfred S. Lippman
/s/ Eric J. Nickelsen Director November 17, 2000
--------------------------------------
Eric J. Nickelsen
Director November ____, 2000
--------------------------------------
John G. Phillips
/s/ John K. Roberts, Jr. Director November 17, 2000
--------------------------------------
John K. Roberts, Jr.
/s/ Carroll W. Suggs Director November 17, 2000
--------------------------------------
Carroll W. Suggs
</TABLE>
S-2
<PAGE> 104
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
2 The Plan of Merger (included in the registration statement
as Appendix A and incorporated herein by reference).
4.1 Articles of Incorporation of the Registrant, as amended
(filed with the Commission as Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000 (File No. 0- 1026) and incorporated
herein by reference).
4.2 By-laws of the Registrant as amended through May 24, 2000
(Filed with the Commission as Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000 (File No. 0-1026) and incorporated
herein by reference).
5 Opinion of Phelps Dunbar, L.L.P. as to the legality of the
securities being registered.
8 Form of opinion of Arthur Andersen LLP as to certain tax
matters.
23.1 Consent of Arthur Andersen LLP dated November 21, 2000.
23.2 Consent of Alex Sheshunoff & Co. Investment Banking, L.P.
dated November 20, 2000.
23.3 Consent of Phelps Dunbar, L.L.P., included in Exhibit 5.
24 Powers of Attorney of directors of Registrant (contained on
page S-1 of the registration statement).
99 Form of Proxy of Prattville Financial Services Corporation.
</TABLE>
