<PAGE> 1
As filed with the Securities and Exchange Commission on December 8, 2000
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-4
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
--------------------
WHITNEY HOLDING CORPORATION
(Exact name of registrant as specified in its charter)
--------------------
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<S> <C> <C>
LOUISIANA 6711 72-6017893
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
--------------------
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)
Joseph S. Schwertz, Jr., Esq.
Corporate Secretary Copies to: Copies to:
Whitney Holding Corporation Patrick J. Butler, Jr., Esq. Ross D. Margraves, Jr., Esq.
228 St. Charles Ave. - Room 626 Phelps Dunbar, L.L.P. Winstead Sechrest & Minick, PC
New Orleans, LA 70130 365 Canal Street, Suite 2000 2400 Bank One Center
(504) 586-3474 New Orleans, LA 70130 910 Travis Street
(Name, address, including zip code, and Houston, TX 77002
telephone number, including area code, of agent for service)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
Upon submission of the Plan of Share Exchange described in this registration
statement for the vote of shareholders of American Bank.
--------------------
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. [ ]
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. [ ] _________
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
===================================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
<S> <C> <C> <C> <C>
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Common stock, no par value 1,815,000 shares $10.41 $18,897,756 $4,989.00
===================================================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(f)(2) based on the book value as of
October 31, 2000 of the shares of common stock of American Bank to be
acquired in the share exchange 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.
================================================================================
<PAGE> 2
AMERICAN BANK
1600 Smith Street
Suite 300
Houston, Texas 77002
December ___, 2000
Dear Shareholder:
We cordially invite you to attend a Special Meeting of Shareholders of
American Bank, to be held at its main office, 1600 Smith Street, Suite 300,
Houston, Texas on January ____, 2001 at ________ local time.
The purpose of the meeting is to consider and vote on a share exchange
agreement pursuant to which the issued and outstanding shares of American Bank
common stock would be exchanged for a total of 1,815,000 shares of Whitney
common stock, no par value. Assuming there is no change in the number of
outstanding shares of American Bank stock prior to closing, American Bank's
shareholders will receive 4.408 shares of Whitney common stock for each share of
American Bank stock that they hold. Based on the closing market price of Whitney
common stock on December ____, 2000, the total consideration that American
Bank's shareholders will receive in the share exchange is valued at $__________.
After the share exchange, American Bank shareholders 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 share exchange agreement requires
the affirmative vote of two-thirds of the outstanding shares of American Bank
common stock.
The board of directors has unanimously approved the share exchange
agreement as being in American Bank's shareholder's best interests. For the
share exchange to be completed, American Bank and Whitney must also receive an
opinion that the share exchange will qualify as a tax-free reorganization for
federal income tax purposes.
This proxy statement-prospectus contains additional information about
the share exchange agreement and the proposed share exchange. 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
SHARE EXCHANGE 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,
David R. Wilson
Chairman of the Board and Chief Executive
Officer
YOU SHOULD NOT RETURN YOUR AMERICAN BANK STOCK CERTIFICATES AT THIS
TIME. YOU WILL RECEIVE INSTRUCTIONS AT A LATER DATE REGARDING THE EXCHANGE OF
YOUR AMERICAN BANK 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 SHARE EXCHANGE 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 DECEMBER ____, 2000
<PAGE> 3
AMERICAN BANK
1600 Smith Street
Suite 300
Houston, Texas 77002
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD JANUARY ____, 2001
To the Holders of Common Stock of American Bank:
NOTICE IS HEREBY GIVEN that a Special Meeting of Shareholders of
American Bank will be held at its main office 1600 Smith Street, Suite 300,
Houston, Texas 77002 on January ___, 2001 at ____ _.m., local time, for the
following purposes:
1. To consider and vote on an Agreement and Plan of Share
Exchange dated September 19, 2000 between Whitney Holding
Corporation and American Bank, a copy of which is attached to
the accompanying proxy statement-prospectus as Appendix A and
incorporated herein by reference.
2. To transact such other business as may properly come before
the meeting or any adjournments or postponements thereof.
Only shareholders 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 shareholders who comply with the procedural
requirements of Article 5.12 of the Texas Business Corporation Act will be
entitled to receive payment of the fair value of their shares in accordance with
Texas 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
Robert R. Franklin, Jr., President
Houston, Texas
December ____, 2000
--------------------------------------------------------------------------------
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 AMERICAN BANK'S SECRETARY, OR BY
FILING A PROPERLY EXECUTED PROXY OF A LATER DATE WITH AMERICAN BANK'S CASHIER,
AT OR BEFORE THE MEETING.
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<PAGE> 4
TABLE OF CONTENTS
<TABLE>
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Page
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QUESTIONS AND ANSWERS ABOUT THE SHARE EXCHANGE..................................................................-1-
SUMMARY.........................................................................................................-2-
Information About the Shareholders' Meeting............................................................-2-
What You Will Receive in the Share Exchange............................................................-2-
Management and Operations after the Share Exchange.....................................................-2-
Your Board of Directors Recommends Shareholder Approval ...............................................-3-
Basis for the Terms of the Share Exchange..............................................................-3-
Quorum and Vote Required at the Meeting................................................................-3-
Conditions to the Share Exchange and Amendment or Termination of the Share
Exchange Agreement.....................................................................................-4-
Interests of Certain Persons in the Share Exchange that May be Different from Yours....................-4-
Employee Benefits of American Bank Employees after the Share Exchange..................................-5-
Material Tax Consequences of the Share Exchange........................................................-5-
Dissenters' Rights You Will Have as a Result of the Share Exchange.....................................-6-
Differences in Rights of American Bank Shareholders after the Share Exchange...........................-6-
Accounting Treatment of the Share Exchange.............................................................-6-
Selected Financial Information of Whitney..............................................................-6-
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS.................................................................-8-
THE PARTIES TO THE SHARE EXCHANGE...............................................................................-8-
Whitney Holding Corporation ...........................................................................-8-
American Bank..........................................................................................-9-
MEETING INFORMATION.............................................................................................-9-
Solicitation and Revocation of Proxies ...............................................................-10-
Record Date; Quorum and Vote Required ................................................................-10-
Recommendation of the Board of Directors of American Bank.............................................-11-
PROPOSED SHARE EXCHANGE........................................................................................-11-
General .............................................................................................-11-
Background of the Share Exchange......................................................................-11-
Reasons for the Share Exchange........................................................................-12-
TERMS OF THE SHARE EXCHANGE....................................................................................-14-
General .............................................................................................-14-
Consideration to be Paid to American Bank Shareholders................................................-14-
Surrender and Exchange of Stock Certificates..........................................................-14-
Payment of Expenses Relating to the Share Exchange....................................................-16-
Conditions to the Share Exchange; Waiver of Those Conditions .........................................-16-
Regulatory and Other Required Approvals...............................................................-17-
Business of American Bank Pending the Share Exchange..................................................-17-
Termination of the Share Exchange Agreement...........................................................-18-
Representations and Warranties in the Share Exchange Agreement........................................-19-
Certain Differences in Rights of Shareholders.........................................................-20-
Interests of Certain Persons in the Share Exchange....................................................-22-
Material Tax Consequences of the Share Exchange.......................................................-24-
</TABLE>
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Accounting Treatment of the Share Exchange............................................................-25-
DISSENTERS' RIGHTS.............................................................................................-26-
INFORMATION ABOUT AMERICAN BANK................................................................................-28-
Competition...........................................................................................-28-
Supervision and Regulation............................................................................-28-
Seasonality of Business and Customers.................................................................-28-
Employees.............................................................................................-28-
Properties............................................................................................-28-
Legal Proceedings.....................................................................................-29-
Market Price and Dividends............................................................................-29-
Security Ownership of Principal Shareholders and Management of American Bank..........................-30-
INFORMATION ABOUT WHITNEY......................................................................................-31-
General .............................................................................................-31-
Market Prices of and Dividends Declared on Whitney Common Stock.......................................-32-
Incorporation of Certain Documents by Reference ......................................................-33-
OTHER MATTERS..................................................................................................-34-
LEGAL MATTERS .................................................................................................-34-
EXPERTS........................................................................................................-34-
</TABLE>
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<PAGE> 6
QUESTIONS AND ANSWERS ABOUT THE SHARE EXCHANGE
Q. WHAT AM I BEING ASKED TO VOTE UPON?
A. You are being asked to approve the share exchange agreement, which
provides for the automatic exchange of your American Bank stock for shares of
Whitney common stock.
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 share exchange 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 share exchange.
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 share exchange 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 share exchange.
Q. SHOULD I SEND IN MY AMERICAN BANK STOCK CERTIFICATES NOW?
A. No. If the share exchange is completed, we will send all American Bank
shareholders written instructions for exchanging American Bank 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 share exchange, you should contact: A. F.
Celinski, Jr., American Bank, 1600 Smith Street, Suite 300, Houston, Texas
77002, telephone (713) 951-7100.
<PAGE> 7
SUMMARY
We have prepared this summary to assist you, the shareholders of
American Bank, 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 share exchange 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 American Bank.
INFORMATION ABOUT THE SHAREHOLDERS' MEETING
A special meeting of the shareholders of American Bank will be held on
January ____, 2001 at _______ __.m., local time. The meeting will be held at the
main office of American Bank, 1600 Smith Street, Suite 300, Houston, Texas.
At the meeting, you, the shareholders of American Bank, will vote on
the share exchange agreement. If you approve the share exchange agreement and
the other conditions to completing the share exchange are satisfied, we expect
to complete the share exchange in the first quarter of 2001.
WHAT YOU WILL RECEIVE IN THE SHARE EXCHANGE
In the share exchange, Whitney will issue to American Bank's
shareholders a total of 1,815,000 shares of Whitney common stock, subject to the
effect of any American Bank shareholder's exercise of dissenters' rights under
Texas law. Assuming there is no change in the number of outstanding shares of
American Bank stock prior to closing, American Bank's shareholders will receive
4.408 shares of Whitney common stock for each share of American Bank stock that
they hold. Whitney will pay cash instead of issuing any fractional shares to
American Bank shareholders.
MANAGEMENT AND OPERATIONS AFTER THE SHARE EXCHANGE
o American Bank will continue to exist for a short time after
the share exchange as a wholly-owned subsidiary of Whitney.
o Whitney will merge American Bank into Whitney National Bank
once certain business combination procedures are completed,
which Whitney anticipates will occur within three months after
the share exchange.
o For the short period after the share exchange that American
Bank will remain a separate entity, representatives of Whitney
will serve as chief executive officer and chief financial
officer of American Bank, and Robert R. Franklin, Jr., A. F.
Celinski, Jr. and three Whitney representatives will serve as
American Bank's board of directors.
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<PAGE> 8
o After the merger of American Bank into Whitney National Bank,
the separate existence of American Bank will cease.
o No current American Bank directors will be appointed as
directors of Whitney.
YOUR BOARD OF DIRECTORS RECOMMENDS SHAREHOLDER APPROVAL
The board of directors of American Bank has unanimously approved the
share exchange agreement and believes that the share exchange is in the best
interests of American Bank's shareholders. The board recommends that you vote
FOR approval of the share exchange agreement.
BASIS FOR THE TERMS OF THE SHARE EXCHANGE
American Bank's directors considered a number of factors in approving
the terms of the share exchange, including:
o the financial terms of the share exchange;
o information concerning the financial condition, results of
operations and prospects of Whitney and American Bank;
o the anticipated tax-free nature of the share exchange to
American Bank's shareholders for federal income tax purposes;
and
o the financial terms of other recent business combinations in
the banking industry.
QUORUM AND VOTE REQUIRED AT THE MEETING
Shareholders who own American Bank 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 American Bank 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 share exchange agreement requires the affirmative vote
of two-thirds of the outstanding shares of American Bank common stock.
As of the record date for the meeting, directors and executive officers
of American Bank have or share voting or dispositive power over 311,314 shares
(or approximately 75.6%) of the issued and outstanding American Bank common
stock.
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<PAGE> 9
CONDITIONS TO THE SHARE EXCHANGE AND AMENDMENT OR TERMINATION OF THE SHARE
EXCHANGE AGREEMENT
The following conditions must be met in order for the share exchange to
be consummated:
o American Bank's shareholders must approve the share exchange
agreement by the required vote;
o the Federal Reserve Board and the Texas Department of Banking
must approve the share exchange without imposing conditions to
the approval that are unacceptable to Whitney (Federal Reserve
Board approval was received November 29, 2000);
o the share exchange must qualify as a pooling of interests;
o the share exchange must qualify as a tax-free reorganization;
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 share exchange may not be consummated until at least 15 days after
approval of the share exchange by the Federal Reserve Board. Whitney and
American Bank now contemplate that they will complete the share exchange in the
first quarter of 2001, if all approvals are received.
Nearly all of the conditions to consummation of the share exchange may
be waived at any time by the party for whose benefit they were created, except
that the conditions regarding shareholder and regulatory approvals and the
continued effectiveness of Whitney's registration statement may not be waived.
Also, the parties may amend or supplement the share exchange agreement at any
time by written agreement. The parties' boards of directors must approve any
material amendments. Any material change to the share exchange agreement after
the meeting may require a re-solicitation of votes from American Bank
shareholders. In addition, the share exchange agreement may be terminated,
either before or after shareholder approval, under certain circumstances.
INTERESTS OF CERTAIN PERSONS IN THE SHARE EXCHANGE THAT MAY BE DIFFERENT FROM
YOURS
Certain officers and directors of American Bank have interests in the
share exchange that are in addition to their interests as shareholders of
American Bank. These interests include, among others:
o the continued employment of certain executive officers by
Whitney after the share exchange;
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<PAGE> 10
o the continuation of employee benefits;
o provisions in the share exchange agreement relating to
director and officer liability insurance and the
indemnification of officers and directors of American Bank for
certain liabilities;
o American Bank's Retention Agreements with six senior officers
that provide for payments and continued benefits to such
officers under certain circumstances if their employment is
terminated following the share exchange; and
o American Bank's Phantom Stock Plan that provides for cash
payments to certain executives and officers that have been
awarded phantom shares of American Bank stock as a form of
incentive compensation. The cash payment is triggered by a
change in control such as the share exchange and will be
determined in part based on Whitney's stock price on the date
of the closing of the share exchange.
EMPLOYEE BENEFITS OF AMERICAN BANK EMPLOYEES AFTER THE SHARE EXCHANGE
Whitney has agreed to offer to all former American Bank employees who
become Whitney employees the same employee benefits as those offered by Whitney
to its employees. Whitney will also give American Bank employees full credit for
their years of service with American Bank under all Whitney employee benefit
plans, 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.
MATERIAL TAX CONSEQUENCES OF THE SHARE EXCHANGE
American Bank shareholders generally will not recognize gain or loss
for federal income tax purposes on the exchange of their American Bank shares
for the shares of Whitney common stock they receive in the share exchange.
American Bank shareholders will, however, be taxed on cash received instead of
any fractional share. Further, any American Bank shareholder who perfects
dissenters' rights under Texas law, as described in the next section, will be
taxed on cash received for his or her American Bank common stock.
American Bank has elected "S corporation" treatment under the Internal
Revenue Code. This means that the corporate entity does not generally pay income
tax on its profits and losses; instead, American Bank's shareholders pay income
tax on (and receive the tax benefits of) the profits and losses of American
Bank. Whitney is not an "S corporation." Whitney shareholders pay income tax on
the dividends and other distributions they receive in respect of their Whitney
stock. They do not pay income tax on Whitney's profits or receive the tax
benefits of any Whitney losses.
Tax laws are complex, and the tax consequences of the share exchange
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 share exchange
to you.
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<PAGE> 11
DISSENTERS' RIGHTS YOU WILL HAVE AS A RESULT OF THE SHARE EXCHANGE
If the share exchange is completed, those American Bank shareholders
who do not vote for the share exchange and who follow certain procedures
described in this proxy statement- prospectus will be entitled to an appraisal
of the value of their shares under Texas law. If you perfect your dissenters'
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 Texas law. Appendix B includes the relevant provisions of Texas
law regarding these dissenters' rights.
DIFFERENCES IN RIGHTS OF AMERICAN BANK SHAREHOLDERS AFTER THE SHARE EXCHANGE
American Bank shareholders who receive shares of Whitney common stock
in the share exchange will become Whitney shareholders. Their rights as
shareholders after the share exchange 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 American Bank
shareholders. Some of the principal differences are described in this proxy
statement-prospectus.
ACCOUNTING TREATMENT OF THE SHARE EXCHANGE
The parties intend the share exchange to be treated as a pooling of
interests for financial accounting purposes. A number of things could prevent
the share exchange from qualifying for this accounting treatment. For example,
if the cash Whitney would be required to pay in the share exchange, including
cash paid to shareholders who exercise dissenters' rights, were more than 10% of
the value of the American Bank stock to be exchanged, then the share exchange
would not qualify as a pooling of interests. In such a case, Whitney may abandon
the share exchange.
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
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.
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<PAGE> 12
<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)
<S> <C> <C> <C> <C> <C> <C> <C>
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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<PAGE> 13
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 American Bank have made and will make forward-looking
statements in their written documents and oral presentations. These statements
are based on Whitney's and American Bank's managements' beliefs as well as
assumptions made by and information currently available to Whitney and American
Bank management. Whitney's and American Bank'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 American Bank 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 SHARE EXCHANGE
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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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.
AMERICAN BANK
American Bank is a Texas banking corporation providing a broad line of
financial products and services to small and medium-sized businesses and
consumers through its community banking branches in Harris and Fort Bend
Counties, Texas.
As of September 30, 2000, American Bank had total assets of
approximately $279 million, deposits of approximately $238 million and
shareholders' equity of approximately $18 million.
American Bank's principal executive offices are located at:
1600 Smith Street, Suite 300
Houston, Texas 77002
Telephone: (713) 951-7100
Additional information concerning the business and financial condition
of American Bank is included below under the heading "Information About American
Bank."
MEETING INFORMATION
You have received this proxy statement-prospectus because the board of
directors of American Bank is soliciting your proxy for the special meeting.
Each copy of this proxy statement-prospectus mailed to holders of American Bank
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 American Bank common stock
on ___________, 2000 are entitled to notice of and to vote at the meeting.
At the meeting, shareholders will consider and vote upon:
o the share exchange agreement; and
o any other matters that are properly brought before the meeting
or any adjournments of the meetings.
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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 American Bank executive vice
president and cashier prior to the date of the meeting
revoking your proxy; or
o submitting to the American Bank executive vice president and
cashier 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 share
exchange 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. American Bank's board of directors is not
aware of any matter to be presented at the meeting other than the proposal to
approve the share exchange agreement.
American Bank will bear the cost of soliciting proxies from its
shareholders, except that Whitney will bear all expenses for printing and
mailing this proxy statement-prospectus. American Bank will solicit shareholder
votes by mail, and perhaps by telephone or other means of telecommunication.
Directors, officers and employees of American Bank may also solicit shareholder
votes in person. If these individuals solicit your vote in person, they will
receive no additional compensation for doing so. American Bank will reimburse
brokerage firms and other persons representing beneficial owners of shares for
their reasonable expenses in forwarding solicitation material to those
beneficial owners.
AMERICAN BANK SHAREHOLDERS SHOULD NOT SEND ANY STOCK CERTIFICATES WITH THEIR
PROXY CARDS. IF THE SHARE EXCHANGE AGREEMENT IS APPROVED, AMERICAN BANK
SHAREHOLDERS WILL RECEIVE INSTRUCTIONS FOR EXCHANGING THEIR STOCK CERTIFICATES
AFTER THE SHARE EXCHANGE HAS BEEN COMPLETED.
RECORD DATE; QUORUM AND VOTE REQUIRED
The record date for the meeting is _________, 2000. American Bank
shareholders 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 411,750 shares of American Bank common stock
outstanding and entitled to vote at the meeting.
The presence, in person or by proxy, of a majority of the shares of
American Bank common stock entitled to vote on the share exchange agreement is
necessary to constitute a quorum at the meeting. Each share of American Bank
common stock outstanding on ______________, 2000 entitles its holder to one vote
on the approval of the share exchange agreement and any other proposal that may
properly come before the meeting.
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To determine the presence of a quorum at the meeting, American Bank
will count as present at the meeting the shares of American Bank common stock
present in person but not voting and the shares of common stock for which
American Bank has received proxies but with respect to which the holders of such
shares have abstained.
Approval of the share exchange agreement requires the affirmative vote
of the holders of two-thirds of the outstanding shares of American Bank common
stock entitled to be voted at the special meeting. Abstentions and broker
non-votes will have the effect of a vote against the share exchange at the
meeting.
American Bank's board of directors urges shareholders 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, American Bank directors and
executive officers beneficially owned a total of 311,314 shares, or
approximately 75.6%, of the outstanding shares of American Bank common stock.
RECOMMENDATION OF THE BOARD OF DIRECTORS OF AMERICAN BANK
The American Bank board of directors has unanimously approved the share
exchange agreement and believes that the share exchange is in the best interests
of American Bank and its shareholders. The American Bank board recommends that
American Bank's shareholders vote FOR approval of the share exchange agreement.
See "Proposed Share Exchange--Background of the Share Exchange" below.
PROPOSED SHARE EXCHANGE
This section of the proxy statement-prospectus describes certain
aspects of the share exchange. The following description is not intended to
include every aspect of the share exchange, but rather contains only the
significant terms of the share exchange. This discussion is qualified in its
entirety by reference to the share exchange 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 share exchange agreement carefully.
GENERAL
If the shareholders of American Bank approve the share exchange
agreement and the other conditions to the consummation of the share exchange are
satisfied, Whitney will exchange shares of Whitney common stock, plus cash
instead of any fractional share, for each outstanding share of American Bank
common stock as to which dissenters' rights have not been exercised and
perfected. Assuming there is no change in the number of shares of American Bank
stock outstanding prior to the closing, Whitney will exchange 4.408 shares of
Whitney common stock for each outstanding share of American Bank stock. Whitney
will not issue more than 1,815,000 shares of Whitney common stock in the share
exchange.
BACKGROUND OF THE SHARE EXCHANGE
Over the past several years, American Bank's board and senior
management have discussed and analyzed American Bank's strategic alternatives.
In February 2000, Whitney acquired Bank of Houston as its initial entry into the
Texas market. Shortly after this acquisition
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by Whitney, senior management entered into discussions with representatives of
Whitney, and Whitney indicated an interest to acquire American Bank. Senior
management brought this expression of interest to its board of directors. On
August 8, 2000, Whitney made an offer to American Bank's board to acquire all of
the issued and outstanding stock of American Bank. 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 customers of American Bank.
The board of directors of American Bank authorized its officers to meet with
representatives of Whitney to pursue a definitive agreement along the lines as
set forth in Whitney's proposal. These negotiations were diligently pursued by
both parties, including the appropriate due diligence.
On September 19, 2000, senior management presented the share exchange
agreement to the American Bank board of directors. On that date the Board
unanimously approved, and authorized the chairman and chief executive officer to
execute, the share exchange agreement.
REASONS FOR THE SHARE EXCHANGE
General
The financial and other terms of the share exchange agreement resulted
from arm's-length negotiations between Whitney and American Bank
representatives. The Whitney and American Bank boards of directors also
considered many factors in determining the consideration American Bank
shareholders would receive in the share exchange. Those factors included:
o the comparative financial condition, results of
operations, current business and future prospects of
Whitney, Whitney National Bank and American Bank;
o the market price and historical earnings per share of
Whitney common stock and American Bank common stock;
and
o the desirability of combining the financial and
managerial resources of Whitney National Bank and
American Bank to further pursue consumer and
commercial banking business in the market American
Bank serves.
Whitney
Whitney's business strategy includes expansion in southeastern Texas to
enhance Whitney's presence in the Houston area. Whitney's management identified
American Bank as an institution that fit well within this strategy.
In deciding to pursue an acquisition of American Bank, Whitney's
management, board of directors and the executive committee of Whitney's board of
directors noted, among other things, the following:
o American Bank's deposit base and branch network in
the greater Houston, Texas area;
o American Bank's capitalization and asset quality; and
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<PAGE> 18
o the desirability of the share exchange over expansion
through de-novo branching.
American Bank
American Bank's board of directors believes the terms of the share
exchange agreement, which are the product of arms-length negotiations between
Whitney and American Bank, are in the best interest of American Bank and its
shareholders. In the course of reaching its determination, American Bank's board
consulted with legal counsel with respect to its legal duties, the terms of the
share exchange agreement and the issues related thereto. The board also
addressed the financial aspects and fairness of the transaction with senior
management regarding, among other things, operational matters.
More specifically, in reaching its determination to approve the share
exchange agreement, America Bank's board considered a number of factors,
including:
o the current condition and growth prospects of
American Bank, 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 future changes in these industries, and
the importance of being able to capitalize on
developing opportunities in these industries;
o the fact that the share exchange will be a tax-free
exchange to American Bank shareholders for federal
income tax purposes;
o the liquidity that the share exchange would provide
to American Bank shareholders because Whitney's
common stock is listed on the Nasdaq Stock Market;
o the extensive publicly available financial and other
information of Whitney that was analyzed, including a
comparison to publicly available financial and other
information about similar institutions;
o the potential increase in the dividend yield that
American Bank's shareholders would receive;
o the long-term prospects for the value of American
Bank's common stock without the share exchange
compared to the prospects for such value following
the share exchange 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 American
Bank, and the belief of the American Bank board and
management that the share exchange offered the best
transaction available to American Bank and its
shareholders; and
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<PAGE> 19
o the general impact of the share exchange on the
constituencies that American Bank serves, including
its customers, employees and community.
After deliberating with respect to the share exchange and the other
transactions contemplated by the share exchange agreement, considering, among
other things, the matters discussed above, the American Bank board of directors
unanimously approved and adopted the share exchange agreement and the
transactions contemplated thereby as being in the best interest of American and
its shareholders.
TERMS OF THE SHARE EXCHANGE
GENERAL
If American Bank's shareholders approve the share exchange agreement
and the other conditions to the share exchange are satisfied, then on the
effective date of the share exchange, Whitney will exchange shares of Whitney
common stock (and cash in lieu of fractional shares) for the outstanding stock
of American Bank, and American Bank will become a wholly-owned subsidiary of
Whitney. Thereafter, in due course, American Bank will be merged with and into
Whitney National Bank and the separate existence of American Bank will cease.
Whitney intends to merge American Bank into Whitney National Bank within three
months after the share exchange. See "- Conditions to the Share Exchange; Waiver
of Those Conditions" for a discussion of the conditions to completing the share
exchange.
CONSIDERATION TO BE PAID TO AMERICAN BANK SHAREHOLDERS
When the share exchange is completed, subject to the effect of the
exercise of any dissenters' rights, the outstanding shares of American Bank
common stock will be exchanged for 1,815,000 shares of Whitney common stock on
the terms described in the share exchange agreement. Assuming there is no change
in the number of outstanding shares of American Bank stock prior to closing,
American Bank's shareholders will receive 4.408 shares of Whitney common stock
for each share of American Bank stock that they hold.
Whitney will not issue any fractional shares of Whitney common stock in
the share exchange. Instead, Whitney will make a cash payment (without interest)
to any American Bank shareholder who would otherwise receive a fractional share.
The payment will equal such fractional share multiplied by the closing price of
a share of Whitney common stock on the Nasdaq Stock Market on the trading day
immediately prior to the closing date of the share exchange.
For information regarding restrictions on the transfer of Whitney
common stock applicable to certain American Bank shareholders, see "-Resales of
Whitney Common Stock."
SURRENDER AND EXCHANGE OF STOCK CERTIFICATES
On the effective date of the share exchange, American Bank's
shareholders who have not exercised dissenters' 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 American Bank common stock
certificates for certificates representing shares of Whitney common stock will
occur after the share exchange.
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Whitney will serve as exchange agent for the share exchange. Shortly
after the effective date of the share exchange, Whitney will send or cause to be
sent to all American Bank shareholders (other than any shareholders who have
exercised their right to dissent) a letter of transmittal with instructions for
exchanging American Bank common stock certificates for certificates of Whitney
common stock. Each American Bank stock certificate outstanding immediately prior
to the share exchange and that will be exchanged in the share exchange will be
deemed for all purposes to evidence ownership of shares of Whitney common stock,
regardless of when they are actually exchanged.
AMERICAN BANK SHAREHOLDERS SHOULD NOT SEND IN THEIR AMERICAN BANK
COMMON STOCK CERTIFICATES UNTIL THEY HAVE RECEIVED A LETTER OF TRANSMITTAL AND
FURTHER WRITTEN INSTRUCTIONS AFTER THE EFFECTIVE DATE OF THE SHARE EXCHANGE.
PLEASE DO NOT SEND IN YOUR STOCK CERTIFICATES WITH YOUR PROXY.
When Whitney receives certificates of American Bank common stock,
together with a properly completed letter of transmittal, it will direct its
transfer agent to issue, and Whitney will mail to the American Bank shareholder,
a certificate representing the number of whole shares of Whitney common stock
that the former American Bank shareholder received in the share exchange. If the
American Bank shareholder is entitled to receive a fraction of a Whitney share,
Whitney will mail the American Bank shareholder a check instead of the
fractional share.
Whitney, at its option, may decline to pay former shareholders of
American Bank who become holders of Whitney common stock pursuant to the share
exchange any dividends or other distributions that may become payable to holders
of record of Whitney common stock following the effective date of the share
exchange until they have surrendered their certificates evidencing their
American Bank common stock, at which time Whitney will pay any such dividends or
other distributions without interest.
American Bank shareholders who cannot locate their stock certificates
are urged to contact promptly:
American Bank
1600 Smith Street
Suite 300
Houston, Texas 77002
Attention: A. F. Celinski, Jr.
Telephone: (713) 951-7100
American Bank will issue a new stock certificate to replace the lost
certificate(s) only if the American Bank shareholder signs an affidavit
certifying that his or her certificate(s) cannot be located and containing an
agreement to indemnify American Bank and Whitney against any claim that may be
made against American Bank or Whitney by the owner of the certificate(s) alleged
to have been lost or destroyed. American Bank or Whitney may also require the
shareholder to post a bond in an amount sufficient to support the shareholder's
agreement to indemnify American Bank and Whitney.
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<PAGE> 21
PAYMENT OF EXPENSES RELATING TO THE SHARE EXCHANGE
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 share exchange.
CONDITIONS TO THE SHARE EXCHANGE; WAIVER OF THOSE CONDITIONS
The share exchange agreement contains a number of conditions that must
be satisfied or waived (if they are waivable) to complete the share exchange.
The conditions include, among other things:
o approval of the share exchange agreement by American
Bank's shareholders;
o approval of the share exchange by the Federal Reserve
Board and the Texas Department of Banking without
imposing conditions unacceptable to Whitney (see
"-Regulatory and Other Required Approvals");
o issuance of a tax opinion that the share exchange
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 share exchange;
o continued accuracy as of the closing date of the
share exchange of the representations and warranties
set forth in the share exchange agreement and
fulfillment of the parties' covenants set forth in
the share exchange agreement;
o the absence of any material adverse change in the
financial condition, results of operations, business
or prospects of the other party;
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 share exchange for
pooling-of-interests accounting treatment; and
o issuance of certain legal opinions by counsel for
American Bank and Whitney.
The conditions to the share exchange are generally set forth in Section 6 of the
share exchange agreement.
Nearly all of the conditions to completing the share exchange may be
waived at any time by the party for whose benefit they were created, except that
the conditions regarding regulatory
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<PAGE> 22
and shareholder approvals and the continued effectiveness of Whitney's
registration statement may not be waived. Also, the parties may amend or
supplement the share exchange agreement at any time by written agreement. The
parties' boards of directors must approve any material amendments. Any material
change in the terms of the share exchange agreement after the meeting may
require a re-solicitation of votes from American Bank's shareholders with
respect to the changed share exchange agreement.
The parties intend to complete the share exchange 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
share exchange before it can be completed. Whitney and American Bank must then
wait at least 15 days after the date of Federal Reserve Board approval before
they may complete the share exchange. During this 15-day period, the U.S.
Department of Justice may object to the share exchange on antitrust grounds. The
share exchange is also subject to the approval of the Texas Department of
Banking. In its evaluation, the Commissioner of the Texas Department of Banking
will take into account considerations similar to those applied by the Federal
Reserve Board.
The Whitney stock to be issued in exchange for American Bank stock in
the share exchange 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 share exchange with
the Federal Reserve Board on October 25, 2000, and received approval of the
share exchange on November 29, 2000. Whitney filed an application for approval
of the share exchange with the Texas Department of Banking on December 1, 2000
and currently expects to receive that approval by January 5, 2001.
The vote on the share exchange agreement at the meeting is not
conditioned upon receipt of regulatory approval before the meeting. Even if the
share exchange agreement is approved at the meeting it will be terminated if the
Texas Department of Banking does not approve the share exchange or if the
approval includes conditions that Whitney finds objectionable.
BUSINESS OF AMERICAN BANK PENDING THE SHARE EXCHANGE
The share exchange agreement requires American Bank to continue to
operate its business as usual pending the share exchange. Among other things,
American Bank may not, without Whitney's consent, take or agree to take any of
the following actions:
o declare or make dividends or other distributions on,
any shares of American Bank common stock, except
regular distributions in amounts not to exceed $2.00
per share per quarter;
o 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;
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<PAGE> 23
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;
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 share exchange 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 share exchange 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 American Bank's business activities are generally set forth
in Section 5.07 of the share exchange agreement.
In addition, subject to the proper exercise of American Bank's board of
directors' and executive officers' fiduciary duties, American Bank may not
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, American Bank's board may not withdraw its recommendation to
you of the share exchange or recommend to you any such other transaction.
TERMINATION OF THE SHARE EXCHANGE AGREEMENT
The share exchange agreement specifies the circumstances in which the
parties may terminate the agreement and abandon the share exchange. Those
circumstances are:
o by mutual consent of Whitney's and American Bank'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;
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<PAGE> 24
o by either party if the share exchange is not
consummated by March 31, 2001, unless extended, or if
the conditions to such parties obligation to close
are not satisfied by such date;
o by either party if the American Bank shareholders do
not approve the share exchange agreement;
o by Whitney if American Bank's board of directors
withdraws or changes its recommendation of the share
exchange agreement, recommends a merger, sale of
assets or other business combination or substantial
investment by a third party (other than the Whitney
share exchange), or announces any agreement to do any
of those things;
o by American Bank if American Bank receives a bona
fide written offer for an acquisition transaction
that the American Bank board determines to be more
favorable than the Whitney share exchange; or
o by Whitney if the amount of cash to be paid in the
share exchange (whether to shareholders who have
exercised dissenters' rights or as payments in lieu
of fractional shares) would preclude
pooling-of-interests accounting for the share
exchange.
Provisions of the share exchange agreement regarding confidentiality
and certain miscellaneous matters will survive any termination of the agreement.
REPRESENTATIONS AND WARRANTIES IN THE SHARE EXCHANGE AGREEMENT
American Bank and Whitney have made certain representations and
warranties to each other as part of the share exchange agreement. American
Bank's representations and warranties relate to, among other things:
o its organization and authority to enter into the
share exchange agreement;
o its capitalization, properties and financial
statements;
o pending and threatened litigation;
o its loans, investment portfolios, reserves and taxes;
o insurance, employee benefits and environmental
matters;
o its contractual obligations and contingent
liabilities;
o its public reports filed with the Federal Reserve
Board and the Federal Deposit Insurance Corporation;
and
o its Subchapter S election under the Internal Revenue
Code and related matters.
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American Bank's representations and warranties are generally contained in
Section 3 of the share exchange agreement.
Whitney's representations and warranties relate to, among other things:
o its organization and authority to enter into the
share exchange 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 share exchange; and
o Whitney's public reports filed with the Securities
and Exchange Commission.
Whitney's representations and warranties are generally contained in Section 4 of
the share exchange agreement.
Whitney's representations and warranties are for the benefit of
American Bank; they are not for the benefit of and may not be relied upon by
American Bank's shareholders. The representations and warranties of the parties
generally will not survive the effective date of the share exchange.
CERTAIN DIFFERENCES IN RIGHTS OF SHAREHOLDERS
If the share exchange is completed, all American Bank shareholders,
other than those who exercise and perfect dissenters' 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
American Bank shareholders 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.
American Bank 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.
American Bank'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
shareholders.
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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.
An American Bank director may be removed from office with or without
cause at any special meeting of shareholders called for that purpose by a vote
of shareholders owning a majority in interest of the shares of the capital stock
of American Bank then entitled to vote at an election of 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 American Bank shareholders may be called by a
majority of the board of directors, by the chairman of the board of directors,
the president or shareholders owning a majority in interest of the shares of the
capital stock of American Bank.
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.
Under Article 2.44 of the Texas Business Corporation Act, any
shareholder of American Bank who has been a shareholder for at least 6 months
immediately preceding his demand, or is the holder of at least 5% of all the
outstanding shares, upon written demand stating the purpose thereof, has the
right to examine, in person or by agent, accountant or attorney, at any
reasonable time or times, for any proper purpose, its relevant books and records
of account, minutes and share transfer records, and to make extracts therefrom.
Notwithstanding Article 2.44 of the Texas Business Corporation Act, a
shareholder of a Texas state bank, under Section 31.308 of the Texas Finance
Code, may not examine (i) a report of examination or other confidential property
of the Texas Department of Banking that is in the possession of the state bank
or (ii) a book or record of the state bank that directly or indirectly pertains
to financial or other information maintained by the bank on behalf of its
customers, including a specific item in the minutes of the board or a committee
of the board regarding loan review and approval or a loan delinquency report
that would tend to identify the bank's customer.
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<PAGE> 27
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 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. Texas law does
not have similar provisions governing American Bank.
American Bank's Articles of Association do not include any specific
provisions regarding takeover attempts and other acquisitions of interest in
American Bank.
INTERESTS OF CERTAIN PERSONS IN THE SHARE EXCHANGE
Employee Benefits
Whitney has agreed that all persons employed by American Bank at the
effective time of the share exchange 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 American Bank employees who are employed at the effective
time of the
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<PAGE> 28
share exchange will be given full credit for all prior service as employees of
American Bank, 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 American Bank 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 American
Bank's articles of association and bylaws as in effect on September 19, 2000
with respect to matters occurring prior to or at the effective time of the share
exchange will survive for a period concurrent with the applicable statute of
limitations. American Bank will cause the officers and directors of American
Bank to be covered by American Bank's directors and officers liability insurance
policy (or a substitute policy) for three years following the effective time of
the share exchange, subject to certain conditions. In addition, Whitney has
agreed to indemnify, under certain conditions, American Bank's directors,
officers and controlling persons against certain expenses and liabilities,
including certain liabilities arising under federal securities laws.
No director or executive officer of American Bank owns any Whitney
common stock. No director or executive officer of Whitney has any personal
interest in the share exchange other than as a Whitney shareholder. No Whitney
director or executive officer owns any shares of American Bank common stock.
Retention Agreements
American Bank has entered into Retention Agreements with the following
senior officers: A.F. Celinski, Jr., James L. Hacker, Charles S. Keever, Bruce
W. Reed, Philip L. Davis and Andrew Dow. Each agreement provides for the payment
to the covered officer of such officer's base salary for a period of one year
from the date of a change of control in the event that (i) the officer is
terminated following a change in control, provided that such termination is made
without "cause", or (ii) the officer terminates his employment for "good reason"
following a change in control. The agreements also provide that American Bank
will continue to make available to the officer until the earlier of (i) one year
following the date of a change in control, or (ii) until the officer's
employment with another employer, all life insurance, health care, disability,
dental, profit sharing, salary deferral, expense account, country club dues,
automobiles or other benefits provided to the officer prior to the change in
control.
The closing of the share exchange will be deemed a change of control
under these agreements. Accordingly, if during a-one-year period following the
closing of the share exchange a covered officer is terminated for a reason other
than "cause" or the officer chooses to terminate his employment for "good
reason," the officer will be entitled to payments and benefits in accordance
with these agreements. Cash payments under these agreements are payable in full
to the covered officer immediately upon such officer's termination and are in
addition to and not in lieu of any other severance programs or similar benefits
to which the officer would otherwise be entitled.
"Good Reason" is defined under the agreements to include the occurrence
following a change in control without the express written consent of the officer
of: (1) the assignment to the
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<PAGE> 29
officer of duties inconsistent with the officer's positions, duties,
responsibilities and status as in effect prior to the change in control or the
officer's removal from any position or any adverse change in reporting
responsibilities, title or office; (2) a reduction in the officer's base salary;
(3) requiring the officer to relocate or to undertake substantially greater
business travel obligations; (4) failure to continue a benefit plan or
arrangement; (5) failure to provide the officer with an automobile allowance of
at least $500 per month or to pay country club dues; and (6) any reduction of
vacation benefits.
"Cause" is defined under the agreement to be termination on the basis
of death, disability, retirement in accordance with customary policies, willful
and continued failure by the officer to substantially perform his duties
following demand for performance and an opportunity to cure, or the officer's
willful engagement in misconduct that is materially injurious to American Bank.
Phantom Stock Agreements
As a form of incentive compensation American Bank adopted a Phantom
Stock Plan pursuant to which nine officers were awarded rights to an aggregate
of 11,000 "units of beneficial interest" or "phantom shares" of American Bank
stock. Upon a "change in control" the holders of phantom shares are entitled to
receive a cash payment in an amount equal to the value of an issued and
outstanding share of the stock of American Bank as of the date of the change in
control, less the book value of a unit of beneficial interest at the close of
business on December 31 of the year the participant's phantom shares were
awarded. The actual cash payment to phantom shareholders will be determined
based on Whitney's stock price on the date of the closing. Based on a range of
Whitney stock price from $30 to $45 per share, the total estimated payments
under the Phantom Stock Plan will range from $1,017,430 to $1,744,750.
MATERIAL TAX CONSEQUENCES OF THE SHARE EXCHANGE
The following is a summary description of the material income tax
consequences of the share exchange. We do not intend it to be a complete
description of the federal income tax consequences of the share exchange. 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 share exchange under state, local or other tax laws. We urge
you to consult a tax advisor regarding the tax consequences of the share
exchange to you.
Whitney and American Bank must receive a tax opinion from Arthur
Andersen LLP in order to complete the share exchange. The tax opinion will be
based upon representations made by Whitney and American Bank about the terms of
the share exchange and certain other matters. The tax opinion must conclude that
the share exchange will constitute a reorganization within the meaning of
Section 368 of the Internal Revenue Code, which means:
o neither Whitney nor American Bank will recognize any
gain or loss in the share exchange;
o American Bank's shareholders will not recognize any
gain or loss for federal income tax purposes to the
extent they receive Whitney common stock in exchange
for their American Bank common stock;
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<PAGE> 30
o the tax basis of the Whitney common stock received in
the share exchange will be the same as the tax basis
of the exchanged American Bank 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 shareholder
held his or her American Bank common stock (as long
as the American Bank common stock was held as a
capital asset at the effective date of the share
exchange); and
o where solely cash is received by a holder of American
Bank common stock in the share exchange pursuant to
the exercise of rights of dissent, such cash will be
treated as a redemption of the shareholder's common
stock subject to the provisions and limitations of
Section 302 of the Internal Revenue Code.
American Bank has elected "S corporation" treatment under the Internal
Revenue Code. This means that the corporate entity does not generally pay income
tax on its profits and losses; instead, American Bank's shareholders pay income
tax on (and receive the tax benefits of) the profits and losses of American
Bank. Whitney is not an "S corporation." Whitney shareholders pay income tax on
the dividends and other distributions they receive in respect of their Whitney
stock. They do not pay income tax on Whitney's profits or receive the tax
benefits of any Whitney losses.
ACCOUNTING TREATMENT OF THE SHARE EXCHANGE
Whitney intends to account for the share exchange as a pooling of
interests. In order for the share exchange 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 share exchange cannot exceed 10% of the
value of the outstanding American Bank common stock to be exchanged in the share
exchange. Also, in order for the pooling-of-interests accounting method to
apply, affiliates of Whitney and American Bank cannot sell, transfer, pledge or
otherwise alienate or encumber any shares of Whitney common stock (whether
received in the share exchange or otherwise) until Whitney has published the
results of at least 30 days of post-share exchange combined operations of
Whitney and American Bank. Whitney is not obligated to consummate the share
exchange if the share exchange 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 share exchange
have been registered under the Securities Act of 1933, as amended. American Bank
shareholders who are not affiliates of American Bank or Whitney may freely trade
their Whitney common stock upon completion of the share exchange. The term
"affiliate" generally means each person who was an executive officer, director
or 10% shareholder of American Bank prior to the share exchange or who is an
executive officer, director or 10% shareholder of Whitney after the share
exchange.
Those shareholders who are deemed to be affiliates of American Bank may
only sell their Whitney common stock as provided by Rule 145 of the Securities
Act, or as otherwise permitted under the Securities Act.
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<PAGE> 31
If you are or may be an American Bank 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 share exchange. Persons
assumed to be affiliates of American Bank have entered into agreements with
Whitney not to sell shares of Whitney common stock they receive in the share
exchange 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-share exchange combined operations of Whitney and American
Bank. This restriction is necessary in order to satisfy certain requirements for
pooling-of-interests accounting treatment.
DISSENTERS' RIGHTS
The Texas Business Corporation Act (TBCA) provides American Bank
shareholders with the right to dissent from the share exchange and obtain cash
for their American Bank shares if the share exchange is consummated. The
availability of these appraisal rights is conditioned upon compliance with the
provisions of Articles 5.11, 5.12 and 5.13 of the TBCA. Accordingly, any
American Bank shareholder who wishes to exercise dissenters' rights in
connection with the proposed share exchange and receive the appraised cash value
of his or her shares should consult with legal counsel.
Shares of American Bank common stock held by a shareholder who
exercises dissenters' rights in connection with the share exchange will not be
converted into shares of Whitney common stock. Instead, they will be converted
into the right to receive payment of the fair value of their shares of American
Bank stock as of the day immediately preceding the meeting.
THE FOLLOWING SUMMARY IS NOT INTENDED TO BE A COMPLETE STATEMENT OF
DISSENTERS' RIGHTS OF APPRAISAL AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
THE FULL TEXT OF ARTICLES 5.11, 5.12 AND 5.13 OF THE TCBA, COPIES OF WHICH ARE
ATTACHED AS APPENDIX B AND ARE INCORPORATED INTO THIS DISCUSSION BY REFERENCE.
Under the TBCA, any American Bank shareholder may object to the share
exchange and demand payment of the fair value of his or her shares. The
shareholder must file a written objection to the share exchange prior to the
meeting stating that he or she will exercise dissenters' rights. The notice must
include the shareholder's address to receive notices either by delivery or by
mail and must be filed with American Bank at the following address:
American Bank
Attention: Executive Vice President and Cashier
1600 Smith Street, Suite 300
Houston, Texas 77002
If the share exchange is effected and the American Bank shareholder
made demand and did not vote in favor of the share exchange, American Bank will
send the shareholder written notice of consummation of the share exchange within
10 days after it is completed. The shareholder may within 10 days after
receiving the notice send a written demand to American Bank for payment of the
fair value of his or her shares at the following address:
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<PAGE> 32
American Bank
Attention: Executive Vice President and Cashier
1600 Smith Street, Suite 300
Houston, Texas 77002
The demand must state the number and class of shares of stock the shareholder
holds and his or her estimate of the fair value of those shares.
A dissenting shareholder does not have to vote against the share
exchange to perfect dissenters' rights and demand appraisal. However, an
American Bank shareholder cannot vote in favor of the share exchange and then
demand dissenters' rights. Proxies that are submitted to the Bank that do not
specify how the proxy is to be voted will be voted in favor of the share
exchange. Therefore, an American Bank shareholder who wishes to dissent from
approval of the share exchange should not submit such a proxy.
A dissenting shareholder must make a demand for payment of the fair
value of his or her shares within the 10-day period specified in the TBCA or the
shareholder will be bound by the share exchange agreement and his or her
dissenters' rights will be terminated. A vote against the share exchange will
not satisfy the statutory requirement that a shareholder give notice of his or
her intention to dissent and make demand for payment of the fair value of his or
her shares of American Bank stock. Upon making such demand and satisfying the
other conditions described above, a dissenting shareholder will no longer be a
shareholder of American Bank, but will become a creditor of American Bank.
Within 20 days after making written demand for payment of the fair
value of his or her shares of American Bank stock, a dissenting shareholder must
submit his or her certificate(s) formerly representing shares of American Bank
stock to American Bank for notation on the certificate(s) that such demand has
been made. Failure to submit the certificate(s) for notation, will, at the
option of American Bank, terminate the dissenting shareholders' dissenters'
rights, the shareholder will be conclusively presumed to have approved the share
exchange and his or her right to be paid the fair value of his or her shares of
American Bank stock will terminate. Such a shareholder then will only be
entitled to receive, in accordance with the share exchange agreement, shares of
Whitney common stock (and cash in lieu of fractional shares) for each share of
American Bank stock that he or she holds.
Within 20 days after receiving any demand for payment, American Bank
will send each of the dissenting shareholders written notice to the effect that
either it will pay the amount claimed or it will pay some other amount as the
fair value.
If, within 60 days after the date the share exchange is effective,
American Bank and the dissenting shareholder can agree upon the fair value,
American Bank will pay such value and all rights of the dissenting shareholder
will cease. If American Bank and the dissenting shareholder cannot agree on the
fair value within that 60-day period, either the dissenting shareholder or
American Bank may, within 60 days after the expiration of the 60-day period,
file an action in a court of competent jurisdiction asking for a finding and
determination of the fair value of such shares. Court costs will be allocated
between the parties in such manner as the Court may determine.
You must do all of the things described in this section and as set
forth in Articles 5.11, 5.12 and 5.13 of the TBCA in order to preserve your
dissenters' rights and to receive the fair
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<PAGE> 33
value of your shares in cash (as determined under Articles 5.11, 5.12 and 5.13).
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 Texas law, American Bank shareholders who are considering
dissenting from the approval of the share exchange agreement and exercising
their dissenters' rights should consult their legal advisors.
INFORMATION ABOUT AMERICAN BANK
DESCRIPTION OF BUSINESS
American Bank is a Texas banking corporation providing a broad line of
financial products and services to small and medium-sized businesses and
consumers through its community banking branches in Harris and Fort Bend
Counties, Texas.
COMPETITION
Primarily located in the Central Business District of Houston, American
Bank competes against major national and regional banking institutions. It also
competes with non-banking financial institutions such as credit unions,
securities firms, trust companies and insurance companies for deposits and
loans.
SUPERVISION AND REGULATION
American Bank is regulated by the Federal Deposit Insurance Corporation
and the Texas Department of Banking.
SEASONALITY OF BUSINESS AND CUSTOMERS
Until recent times, Houston's economy was largely based on the
exploration and production of oil and natural gas. Now, its economic
diversification includes growth in high technology industries, medical research,
healthcare and professional services.
Houston is home to many businesses including corporate headquarters for
15 of the Fortune 500 Companies. In addition, many foreign countries and
corporations have established a presence in Houston to access North American
markets through the city's excellent distribution facilities including the Port
of Houston, which ranks eighth in the world in terms of shipping tonnage and
first in the United States in terms of foreign tonnage.
EMPLOYEES
As of the date of this proxy statement-prospectus, American Bank had 92
full time employees. American Bank considers its relationship with employees to
be good.
PROPERTIES
The following list describes the location and general character of the
principal properties owned or leased by American Bank and its subsidiaries:
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<PAGE> 34
<TABLE>
<CAPTION>
Location Area Owner Use Sq. Feet
-------- ---- ----- --- --------
<S> <C> <C> <C> <C>
1600 Smith Street Houston 1600 Smith Main Office 33,917
Street Venture
2402 N. Main Street Houston American Branch 4,000
Bank
1415 Louisiana Houston 1415 Branch 2,302
Louisiana Ltd.
1111 Bagby Houston Coventry Fund Branch 1,834
III, Ltd.
5102 Richmond Houston POR, Inc. Branch 3,484
117 Lane Drive #27 Rosenberg Mellon Real Branch 3,300
Estate, Inc.
</TABLE>
American Bank's management believes that all of its properties are in
generally good condition and are adequate to meet the needs of the communities
they serve.
LEGAL PROCEEDINGS
American Bank is not a party to any legal or administrative proceeding
that would have a material adverse impact on its financial condition.
MARKET PRICE AND DIVIDENDS
Market Prices
Since its formation, American Bank has not had, nor has it provided, a
market for its stock. American Bank stock has always been closely held and the
number of trades in its stock have been nominal. Management is not aware of any
transactions in American Bank common stock in the last five years other than one
trade that occurred in August 1998 for 460 shares at a price of $50.00 per share
and two trades (one for a total of 28,750 shares and one for a total of 20,000
shares) that occurred in March 1999 at a price of $56.00 per share.
Distributions
The following table sets forth, for the periods indicated, the
distributions declared by American Bank. American Bank's ability to declare and
pay distributions after September 19, 2000 is subject to the restrictions set
forth in the share exchange agreement.
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<PAGE> 35
DISTRIBUTIONS DECLARED
<TABLE>
<S> <C>
2000
Third Quarter..................................................$ 2.00
Second Quarter.................................................$ 2.00
First Quarter..................................................$ 2.00
1999
Fourth Quarter.................................................$ 1.50
Third Quarter..................................................$ 1.25
Second Quarter.................................................$ 1.25
First Quarter..................................................$ 1.25
1998
Fourth Quarter.................................................$ 1.25
Third Quarter..................................................$ 1.00
Second Quarter.................................................$ 1.00
First Quarter..................................................$ 1.00
</TABLE>
Holders
As of ____________, 2000, the record date for the meeting, there were
nine record shareholders of American Bank common stock.
SECURITY OWNERSHIP OF PRINCIPAL SHAREHOLDERS AND MANAGEMENT OF AMERICAN BANK
Principal Shareholders
The following table reflects certain information regarding those
persons American Bank knows to be the beneficial owner of more than five percent
of the outstanding American Bank 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>
Robert T. Brockman 98,449 23.91%
H. O. Myers 100,252 24.35%
J. Victor Samuels 40,325 9.79%
David R. Wilson 139,067 33.77%
</TABLE>
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<PAGE> 36
Directors and Executive Officers
The following table sets forth certain information as of the record date
for the meeting concerning the beneficial ownership of American Bank common
stock by each director of American Bank and by all directors and executive
officers of American Bank 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>
James H. Bray 4,320 1.05%
Robert R. Franklin, Jr. 19,450 4.72%
Robert R. Franklin, M.D. 7,900 1.92%
Ross D. Margraves, Jr. 0 0.00%
H. O. Myers 100,252 24.35%
J. Victor Samuels 40,325 9.79%
David R. Wilson 139,067 33.77%
Duke Woodward 0 0.00%
All directors and executive officers 311,314 75.60%
as a group (9 persons)
</TABLE>
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
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<PAGE> 37
retirement benefit plans, corporations and individuals, and offers certain
limited investment brokerage services.
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
share exchange.
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 a financial institution in Prattville, Alabama, which has total
consolidated assets of approximately $168 million. That transaction involves a
merger that is intended to qualify as a pooling of interests. The pending
transaction has been approved by applicable regulatory authorities and is
subject to other customary conditions. The total combined assets of American
Bank 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> 38
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 American Bank
shareholders 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 purposes
of this proxy statement-prospectus to the extent that
a statement contained herein or in any other
subsequently filed
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<PAGE> 39
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 American Bank 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
American Bank'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
share exchange.
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 such
firm as experts in accounting and auditing in giving such report.
The opinion regarding the tax treatment of the share exchange, which is
filed as an exhibit to the registration statement of which this proxy
statement-prospectus forms a part, has been rendered 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.
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The enclosed proxy is solicited by American Bank'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
AMERICAN BANK
Robert R. Franklin, Jr., President
IMPORTANT NOTICE FOR AMERICAN BANK SHAREHOLDERS
IF YOU CANNOT LOCATE YOUR AMERICAN BANK COMMON STOCK CERTIFICATE(S),
PLEASE CONTACT A. F. CELINSKI, JR., EXECUTIVE VICE PRESIDENT AND CASHIER, AT
AMERICAN BANK, 1600 SMITH STREET, SUITE 300, HOUSTON, TEXAS 77002, TELEPHONE
NUMBER (713) 951-7100. 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
AMERICAN BANK SPECIAL MEETING, WE ENCOURAGE YOU TO RESOLVE THOSE MATTERS BEFORE
THE MEETING.
PLEASE DO NOT SEND YOUR AMERICAN BANK STOCK CERTIFICATES AT THIS TIME.
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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 share exchange. 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 share
exchange. 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. American
Bank has supplied all of the information relating to American Bank.
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.
<PAGE> 42
APPENDIX A
AGREEMENT AND PLAN OF SHARE EXCHANGE
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AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE ("Agreement") is made
September 19, 2000, between Whitney Holding Corporation ("Whitney"), a Louisiana
corporation, on the one hand, and American Bank (the "Bank"), a Texas chartered
Subchapter S state bank, on the other hand. Whitney and the Bank shall be
hereinafter collectively referred to as the "Constituent Corporations".
PREAMBLE
WHEREAS, the boards of directors of Whitney and the Bank have
determined that it is desirable and in the best interests of their respective
corporations and shareholders that Whitney acquire all of the issued and
outstanding shares of the Bank pursuant to a share exchange (the "Share
Exchange") as permitted by Article 5.02 of the Texas Business Corporation Act
(the "TBCA") and Section 32 of the Texas Finance Code (the "TFC") on the terms
and subject to the conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
SECTION 1. THE SHARE EXCHANGE, BANK MERGER AND CLOSING
1.01. SHARE EXCHANGE AND BANK MERGER
(a) The Share Exchange. On the terms set forth in this Agreement and
subject to the conditions set forth in Section 6 hereof, all issued and
outstanding shares of the Bank common stock, $10.00 par value (the "Bank Common
Stock") will be exchanged for shares of Whitney common stock, no par value
("Whitney Common Stock") and the Bank shall become a wholly owned subsidiary of
Whitney.
(b) Certain Effects of the Share Exchange. The Share Exchange shall
have the effects set forth in Section 32.008 of the TFC and Article 5.06 of the
TBCA.
(c) The Bank Merger. Whitney reserves the right to merge the Bank into
Whitney National Bank ("WNB") immediately after or at any other time following
the Share Exchange. If Whitney elects to proceed with the merger of the Bank
into WNB, the Boards of Directors of WNB and the Bank will execute a bank merger
agreement pursuant to which the Bank will merge with and into WNB, which shall
be the surviving bank.
1.02. THE CLOSING
The "Closing" of the transactions contemplated hereby will take place
in the Board Room of Whitney, 228 St. Charles Avenue, New Orleans, Louisiana
70130 at 9:00 a.m., New Orleans time, as soon as practicable following
satisfaction of the conditions set forth in subparagraphs (a), (b) and (d) of
Section 6.01 hereof, on a mutually agreeable date between January 1, 2001 and
the business day immediately preceding the record date for Whitney's first
quarter dividend in 2001 ( the "Whitney Record Date"), or if the closing has not
occurred prior to Whitney's Record Date, then upon satisfaction of such
conditions the Closing shall take place on March 31, 2001 or any other date
mutually agreed to by Whitney and Bank. 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) the appropriate officers of the parties shall execute,
deliver and acknowledge the Articles of Share Exchange in substantially the form
set forth in Exhibit 1.02 hereof (the "Articles") in accordance with Article
5.04 of the TBCA, and (d) the parties shall take such further action
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as is required to consummate the transactions contemplated by this Agreement. 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 Share
Exchange shall be consummated by the filing of the Articles with the Banking
Commissioner of Texas (the "Commissioner"), and the Share Exchange shall be
effective at the date and time specified in Articles. The date on which and the
time at which the Share Exchange becomes effective are herein referred to as the
"Effective Date" and the "Effective Time," respectively.
1.04. CORPORATE MATTERS
Immediately following the Effective Time, the Articles of Association
of the Bank shall be amended and restated pursuant to Section 32.008 of the TFC
and Article 4.07 of the TBCA, as shown on Exhibit 1.04 annexed hereto (the
"Amended Articles"). The Bylaws of the Bank shall likewise be amended and
restated. The directors and officers of the Bank at the Effective Time shall
remain the directors and officers of the Bank 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 capital stock of the Bank issued
and outstanding immediately prior to the Effective Time shall remain issued and
outstanding from and after the Effective Time and shall be the capital stock of
the Bank.
1.05. TAX CONSEQUENCES
It is the intention of the parties hereto that the Share Exchange 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. EXCHANGE OF SHARES
2.01. EXCHANGE
Subject to the provisions of this Section 2, and in accordance with
Section 32.008 of the TFC and Article 5.02 of the TBCA, Whitney shall acquire
all of the Bank Common Stock issued and outstanding immediately prior to the
Effective Time, pursuant to the plan of share exchange set forth in this
Agreement and the shares of Bank Common Stock shall be exchanged as follows:
(a) Exchange Ratio. Each issued and outstanding share of Bank Common
Stock, other than Dissenting Shares (as hereinafter defined) and shares held in
treasury ("Treasury Shares"), and subject to the provisions of subsection
2.01(d) relating to fractional shares, shall, by virtue of the Share Exchange
and without any action on the part of the holder thereof, be exchanged for that
number of shares of Whitney Common Stock that is equal to the quotient (the
"Exchange Ratio") obtained by dividing the Exchange Consideration (as
hereinafter defined) by the total number of issued and outstanding shares (not
Treasury Shares) of Bank Common Stock immediately prior to the Effective Time.
(b) For purposes of this Section 2, shares of Bank Common Stock that
are held by the Bank (other than shares held by the Bank in a fiduciary capacity
other than for the Bank) shall not be considered outstanding and shall be
cancelled (and not converted) by virtue of the Share Exchange.
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(c) Exchange Consideration. The term "Exchange Consideration" means
1,815,000 shares of Whitney Common Stock.
(d) Fractional Shares. In lieu of the issuance of fractional shares of
Whitney Common Stock, each shareholder of the Bank, upon surrender of his or her
certificate that immediately prior to the Effective Time represented Bank Common
Stock, other than Dissenting 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 closing Nasdaq Stock
Market National Market System price of Whitney Common Stock on the trading day
immediately prior to the Closing Date.
(e) Exchange of Certificates. After the Effective Time, each holder of
an outstanding certificate or certificates theretofore representing a share or
shares of Bank Common Stock, other than Dissenting Shares and Treasury Shares,
upon surrender thereof to Whitney, together with duly executed transmittal
materials provided pursuant to Section 2.01(f) or upon compliance by the holder
or holders thereof with the procedures of Whitney 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 Bank Common Stock were converted. Until so surrendered, each
outstanding Bank 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 Bank
Common Stock shall have been converted. Whitney may, at its option, refuse to
pay any dividend or other distribution to holders of unsurrendered Bank stock
certificates until surrendered; provided, however, that upon the surrender and
exchange of any Bank 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 Bank Common Stock
theretofore represented by such certificates shall have been exchanged. The
provisions of this subsection 2.01(e) are intended for the benefit of the
holders of shares of Bank Common Stock and shall be enforceable by such holders
and each such holder's heirs, representatives and successors.
(f) Transmittal Materials. Promptly after the Effective Time, Whitney
shall send to each former shareholder of record of the Bank at the Effective
Time transmittal materials for use in exchanging certificates of Bank Common
Stock for certificates of Whitney Common Stock and cash in lieu of fractional
shares.
(g) Dissenting Shares. Notwithstanding anything in this Agreement to
the contrary, shares of Bank Common Stock which are issued and outstanding
immediately prior to the Effective Time and which are held by shareholders who
have not voted such shares in favor of the Share Exchange and who shall have
delivered a written demand for payment of the fair value of such shares within
the time and in the manner provided in Article 5.12 of the TBCA (the "Dissenting
Shares") shall not be converted into or be exchangeable for the right to receive
the Exchange Consideration provided in subsection 2.01(c) of this Agreement,
unless and until such holder shall have failed to perfect or shall have
effectively withdrawn or lost his right to appraisal and payment under the TFC
and the TBCA. If any such holder shall have so failed to perfect or shall have
effectively withdrawn or lost such right, such holder's shares of Bank Common
Stock shall thereupon be deemed to have been converted into and to have become
exchangeable for, at the Effective Time, the right to receive the Exchange
Consideration without any interest thereon.
2.02. CLOSING TRANSFER BOOKS
At the Effective Time, the stock transfer books of the Bank shall be
closed and no transfers of shares of Bank Common Stock shall be made thereafter.
All shares of Whitney Common Stock issued, and any fractional share
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payments paid upon surrender for exchange of certificates representing shares of
Bank Common Stock in accordance with this Section 2 shall be deemed to have been
issued in full satisfaction of all rights pertaining to shares of Bank Common
Stock theretofore represented by such certificates.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to Whitney that, as of the date of
this Agreement and as of the Closing Date, except as set forth in the
corresponding subsection of the Schedule of Exceptions (as hereinafter defined
in subsection 5.01(b)):
3.01. ORGANIZATION AND QUALIFICATION
The Bank is a Texas chartered Subchapter S state bank, duly organized,
validly existing and in good standing under the laws of the State of Texas and
is domiciled in the State of Texas. The Bank 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 to consummate the
transactions contemplated hereby, and is qualified and in good standing as a
foreign corporation in all jurisdictions in which the failure to so qualify
would have a material adverse effect on the Bank's financial condition, results
of operations or business.
3.02. CAPITAL STOCK; OTHER INTERESTS
The authorized capital stock of the Bank consists of 1,000,000 shares
of common stock, of which 411,750 shares are issued and outstanding and no
shares are held in its treasury. All issued and outstanding shares of capital
stock of the Bank have been duly authorized and are validly issued, fully paid
and non-assessable. The Bank does not have any outstanding stock options or
other rights to acquire any shares of its capital stock or any security
convertible into such shares, nor does it have 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 the Bank and the Bank's shareholders or by which
the Bank is bound with respect to the voting or transfer of Bank Common Stock or
granting registration rights to any holder thereof. The outstanding capital
stock of the Bank has been issued in compliance with all legal requirements and
in compliance with any preemptive or similar rights. The Bank does not have any
subsidiaries or any direct or indirect ownership interest exceeding 5% in any
firm, corporation, partnership or other entity.
3.03. CORPORATE AUTHORIZATION; NO CONFLICTS
Subject to the approval of this Agreement by the shareholders of the
Bank in accordance with the TFC, the TBCA and applicable federal law, all
corporate acts and other proceedings required of the Bank for the due and valid
authorization, execution, delivery and performance of this Agreement and
consummation of the Share Exchange have been validly and appropriately taken.
Subject to approval by the shareholders of the Bank and to such regulatory
approvals as are required by law, this Agreement constitutes the legal, valid
and binding obligation of the Bank and is enforceable against the Bank in
accordance with the terms hereof, except to the extent that enforcement may be
limited by bankruptcy, reorganization, insolvency and other similar laws and
court decisions relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles. Neither the execution, delivery
or performance of this Agreement, nor the consummation of the transactions
contemplated hereby 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 the
Bank's properties or assets under, any of the terms, conditions or provisions of
the Bank's articles of 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 the Bank or any of its assets is bound;
or violate any order, writ, injunction, decree, statute, rule or regulation of
any governmental body applicable to the Bank or any of its assets.
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3.04. FINANCIAL STATEMENTS, REPORTS AND PROXY STATEMENTS
(a) The Bank has delivered or made available to Whitney true and
complete copies of (i) the audited balance sheets as of December 31, 1998 and
December 31, 1999 of the Bank and the related audited 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
unaudited balance sheets as of June 30, 1999 and June 30, 2000 of the Bank, and
the related unaudited statements of income, shareholders' equity and cash flows
for the six-month periods then ended (collectively, the "Interim Financial
Statements"), (iii) the annual report to the Board of Governors of the Federal
Reserve System ("Federal Reserve Board") for the year ended December 31, 1999,
(iv) all call reports, including all amendments thereto, made to the Federal
Deposit Insurance Corporation (the "FDIC"), the Federal Reserve Board and the
Commissioner since December 31, 1995, and (v) all monthly, quarterly, annual and
other communications (including any proxy statements relating to meetings of the
Bank's shareholders) disseminated to the Bank's shareholders at any time since
December 31, 1995.
(b) The Financial Statements and the Interim Financial Statements have
been (and all financial statements delivered to Whitney as required by this
Agreement will be) prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a basis consistent with prior periods, and
present fairly, in conformity with GAAP the results of operations of the Bank
for the periods covered thereby and the financial condition of the Bank as of
the 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 Interim Financial Statements (the "Latest
Balance Sheet"), the Bank has not had, nor are any of its 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 FDIC, the
Commissioner, the Federal Reserve Board, or other banking regulatory agency, and
no report, proxy statement or offering materials made or given to shareholders
of the Bank since January 1, 1997 as of the respective dates thereof, contained,
and no such report, proxy statement, offering materials or report to
shareholders filed or disseminated after the date of this Agreement will
contain, any untrue statement of a material fact or omitted, or will omit, to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Financial Statements and the Interim Financial Statements
are supported by and consistent with a general ledger and detailed trial
balances of investment securities, loans and commitments, depositors' accounts
and cash balances on deposit with other institutions, copies of which have been
made available to Whitney.
3.05. LOAN AND INVESTMENT PORTFOLIOS
All loans, discounts and financing leases (in which the Bank 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 the Bank's business, (b) are evidenced by genuine
notes, agreements or other evidences of indebtedness and (c) to the extent
secured, have been secured by valid liens and security interests which have been
perfected. Accurate lists of all loans, discounts and financing leases as of the
date of the Latest Balance Sheet (or a more recent date), and of the investment
portfolios of the Bank as of such date, have been delivered to Whitney
concurrently with the Schedule of Exceptions. Except as specifically noted on
Schedule 3.05, the Bank is not 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 the Bank 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
the FDIC, the Bank, the FRB or the Commissioner, (iv) an obligation of any
director, executive officer or 10% shareholder of the Bank 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
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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 guidelines or GAAP a future material
increase in any such provisions for losses or a material decrease in any of the
allowances therefor reflected in the Latest Balance Sheet. Each of the
allowances for losses on loans, financing leases and other real estate reflected
on the books of the Bank 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 or a material decrease in the allowances therefor reflected in the Latest
Balance Sheet.
3.07. ABSENCE OF CERTAIN CHANGES OR EVENTS
Since the date of the Latest Balance Sheet, the Bank has not declared,
and will not declare, set aside for payment or pay any dividend to holders of,
or declare or make any distribution on, any shares of the Bank's capital stock
except regular distributions in amounts not to exceed $2.00 per share per
quarter of Bank Common Stock in conformity with past practices of the Bank.
Whitney and the Bank shall cooperate in selecting the record date of the Bank's
distributions for the quarter in which the Effective Time is to occur to ensure
that holders of Bank Common Stock do not fail to receive any distribution or, if
the Closing occurs prior to Whitney's Record Date, a dividend in respect to
their shares of Whitney Common Stock, and a stub distribution for the quarter in
which the Closing occurs in conformity with past practices prorated to the
Closing Date and proportional to a quarterly dividend not to exceed $2.00 per
share. Since the date of the Latest Balance Sheet, there has been no event or
condition of any character (whether actual or threatened) that has had, or can
reasonably be anticipated to have, a material adverse effect on the financial
condition, results of operations or business of the Bank. Except as may result
from the transactions contemplated by this Agreement, the Bank has not, 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 $100,000 in the aggregate, or (iv) incurred any material
liability, commitment, indebtedness or obligation (of any kind whatsoever,
whether absolute or contingent);
(b) suffered any material damage, destruction or loss to immovable or
movable property, whether or not covered by insurance;
(c) experienced any material change in asset concentrations as to
customers or industries or in the nature and source of its liabilities or in the
mix of interest-bearing versus non-interest bearing deposits;
(d) received notice or had knowledge or reason to believe that any
material labor unrest exists among any of its employees or that any group,
organization or union has attempted to organize any of its employees;
(e) received notice that one or more substantial customers has
terminated or intends to terminate such customers' relationship with it, with
the result being a material adverse effect on the Bank;
(f) failed to operate its business in the ordinary course consistent
with past practices, or failed to use
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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;
(i) made any capital expenditure or capital addition or betterment in
excess of $50,000;
(j) entered into any agreement requiring the payment, conditionally or
otherwise, of any salary, bonus, extra compensation, pension or severance
payment to any of its present or former directors, officers or employees, except
such agreements as are terminable at will without any penalty or other payment
by it or increased (except for increases of not more than 5% consistent with
past practices) the compensation (including salaries, fees, bonuses (except
annual year end bonuses that may be paid in conformity with past practices),
profit sharing, incentive, pension, retirement or other similar payments) of any
such person whose annual compensation would, following such increase, exceed
$50,000;
(k) except as required in accordance with GAAP, changed any accounting
practice followed or employed in preparing the Financial Statements or the
Interim Financial Statements;
(l) made any loan, given any discount or entered into any financing
lease which has not been (i) made, at the time and under the circumstances in
which made, for good, valuable and adequate consideration in the ordinary course
of business, (ii) evidenced by genuine notes, agreements or other evidences of
indebtedness and (iii) fully reserved against in an amount sufficient in
accordance with applicable regulatory guidelines to provide for 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
The Bank 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 federal income
tax returns of the Bank have not been audited by the Internal Revenue Service in
the past seven years. No audit or examination is presently being conducted by
any taxing authority nor has the Bank 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 the Bank 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 the Bank. The Bank 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).
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3.09. TITLE TO ASSETS
(a) On the date of the Latest Balance Sheet, the Bank had and, except
with respect to assets disposed of for adequate consideration in the ordinary
course of business since such date, now has, good and merchantable title to all
real property and good and merchantable title to all other material properties
and assets reflected on the Latest Balance Sheet, and has good and merchantable
title to all real property and good and merchantable title to all other material
properties and assets acquired since the date of the Latest Balance Sheet, in
each case free and clear of all mortgages, liens, pledges, restrictions,
security interests, charges and encumbrances of any nature except for (i)
mortgages and encumbrances which secure indebtedness which is properly reflected
in the Latest Balance Sheet or which secure deposits of public funds as required
by law; (ii) liens for taxes accrued but not yet payable; (iii) liens arising as
a matter of law in the ordinary course of business, provided that the
obligations secured by such liens are not delinquent or are being contested in
good faith; (iv) such imperfections of title and encumbrances, if any, as do not
materially detract from the value or materially interfere with the present use
of any of such properties or assets or the potential sale of any of such owned
properties or assets; and (v) capital leases and leases, if any, to third
parties for fair and adequate consideration. The Bank 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
the Bank 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 the Bank of such property. No real
property held by the Bank, or any real property subject to a security interest,
has been deed recorded or otherwise been identified in public records or should
have been recorded or so identified as containing Hazardous Materials.
(b) With respect to each lease of any real property or a material
amount of personal property to which the Bank is a party (whether as lessee or
lessor), except for financing leases in which the Bank 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 Share Exchange will not constitute a default or a cause for
termination or modification of such lease.
(c) The Bank has no 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) Except as set forth on Schedule 3.10 of the Schedule of Exceptions,
to the Bank's knowledge (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 the Bank nor (ii) do any facts or circumstances exist that
would be likely to form the basis for any material claim against the Bank that,
if adversely determined, would have a material adverse effect on the Bank.
(b) The Bank 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 the Bank as a result of examination by any bank regulatory
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authority.
(d) The Bank is not subject to any written agreement, memorandum or
order with or by any bank regulatory authority.
(e) To the Bank's knowledge, 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 the Bank 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 the Bank.
3.11. EMPLOYEE BENEFIT PLANS
(a) Except for the plans listed on Schedule 3.11(a) of the Schedule of
Exceptions (the "ERISA Plans"), the Bank does not sponsor, maintain or
contribute to, nor has the Bank at any time sponsored, maintained or contributed
to, any employee benefit plan that is subject to any of the provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Each of
the ERISA Plans has been maintained and administered in all material respects in
compliance with its terms, the provisions of ERISA and all other applicable
laws, and, where applicable, the provisions of the 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. The Bank 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. The Bank has
not 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 or under similar
requirements of state law.
(b) Set forth on Schedule 3.11(b) of the Schedule of Exceptions is a
true and complete list and description of each and every benefit plan and
benefit arrangement of the Bank 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 have
been 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 the Bank 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 the Bank, or to which the Bank previously made contributions which has been
terminated by the Bank 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
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subject the Bank, 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
The Bank maintains in full force and effect insurance policies and
bonds in such amounts and against such liabilities and hazards as are considered
by it to be adequate. An accurate list of all such insurance policies is
attached as Schedule 3.12 of the Schedule of Exceptions. The Bank is not now
liable for, nor has the Bank received notice of, any material retroactive
premium adjustment. All policies are valid and enforceable and in full force and
effect, and the Bank has not 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, the Bank has not 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) The Bank is not 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 Schedule 3.11 of the Schedule of Exceptions; the agreements, arrangements,
policies and practices referred to Schedule 3.13(a)(ii) of the Schedule of
Exceptions; 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 the Bank as
on the date of this Agreement may be provided in their respective articles of
incorporation or association and by-laws (and no indemnification of any such
officer, director, employee or agent has been authorized, granted or awarded),
except if entered into in the ordinary course of business with respect to
customers of the Bank, letters of credit, guaranties of endorsements and
guaranties of signatures;
(iv) any agreement, contract or commitment which is or if
performed will be materially adverse to the financial condition, results of
operations or business of the Bank;
(v) any agreement, contract or commitment containing any
covenant limiting the freedom of the Bank (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 Texas
state or national banks, 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
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(vi) any written agreement, memorandum, letter, order or
decree, formal or informal, with any federal or state regulatory agency, nor has
the Bank been advised by any regulatory agency that it is considering issuing or
requesting any such written agreement, memorandum, letter, order or decree.
(b) Schedule 3.13(b) 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 the Bank is a party or
which affects the Bank. To the Bank's knowledge, the Bank has not 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.
3.14. LICENSES, FRANCHISES AND GOVERNMENTAL AUTHORIZATIONS
The Bank 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
The Bank has delivered to Whitney true and correct copies of its
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 the Bank are current, complete and correct in all material respects.
3.16. CERTAIN TRANSACTIONS
No past or present director, executive officer or five percent or
greater shareholder of the Bank has, since January 1, 1994, engaged in any
transaction or series of transactions which, if the Bank 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. ENVIRONMENTAL MATTERS
(a) (i) The Bank 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 Bank's knowledge,
properties acquired by foreclosure or in settlement of loans;
(ii) The Bank 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
the Bank;
(iii) There are no past or present events, conditions,
circumstances, activities or plans by the Bank related in any manner to the Bank
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
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material adverse effect on the financial condition, results of operations or
business of the Bank;
(iv) To the Bank'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 the Bank, 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 the Bank's knowledge, the Bank is not subject to or
responsible for any material Environmental Liability which is not set forth and
adequately reserved against on the Latest Balance Sheet.
(b) "Environmental Law Requirement" means all applicable present and
future statutes, regulations, rules, ordinances, codes, licenses, permits,
orders, approvals, plans, authorizations, concessions, franchises and similar
items, of all governmental agencies, departments, commissions, boards, bureaus,
or instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial, administrative, and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment, including without limitation: (A) all requirements, including but
not limited to those pertaining to reporting, licensing, permitting,
investigation, and remediation of emissions, discharges, releases, or threatened
releases of Hazardous Materials (as such term is defined below), chemical
substances, pollutants, contaminants, or hazardous or toxic substances,
materials or wastes whether solid, liquid, or gaseous in nature, into the air,
surface water, groundwater, or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
Hazardous Materials, chemical substances, pollutants, contaminants, or hazardous
or toxic substances, materials or wastes, whether solid, liquid, or gaseous in
nature; (B) all requirements pertaining to protection of the health and safety
of employees or the public; and (C) all requirements pertaining to the (i)
drilling, production, and abandonment of oil and gas wells, (ii) the
transportation of produced oil and gas, and (iii) the remediation of sites
related to that drilling, production or transportation.
(c) "Hazardous Materials" shall mean: (A) Any "hazardous substance" as
defined by either the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Section 9601, et seq.) ("CERCLA") as amended
from time to time, or regulations promulgated thereunder; (B) asbestos; (C)
polychlorinated biphenyls; (D) any "regulated substance" as defined by 40 C.F.R.
Section 280.12, or 30 Texas Administrative Code Section 334.2; (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 Texas 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 Texas 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.
3.18. COMPLIANCE WITH LAWS
The Bank is in compliance with all applicable laws, rules, regulations,
orders, writs, judgments and decrees the noncompliance with which reasonably
could be expected to have a material adverse effect on the financial condition,
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results of operations or business of the Bank. There are no governmental
investigations pending or, to the Bank's knowledge, threatened against the Bank.
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 the Bank as a result of examination by any bank regulatory authority, except
those cited in examination reports previously submitted to, and reviewed by,
Whitney.
3.19. INTELLECTUAL PROPERTY
The Bank owns or holds valid licenses to use all trademarks,
tradenames, service marks and other intellectual property that are used in the
conduct of its business.
3.20. 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.
3.21. ACCURACY OF STATEMENTS
No warranty or representation made or to be made by the Bank in this
Agreement or in any document furnished or to be furnished by the Bank 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 5.13
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.
3.22. SUBCHAPTER S REPRESENTATIONS AND WARRANTIES
(a) As of the effective date of the S corporation election of the Bank
under Section 1362(a) of the Code and at all times thereafter, all shareholders
of Bank have qualified as eligible S corporation shareholders under Section
1361(b) of the Code.
(b) The Bank made a valid, timely S corporation election under Section
1362(a) of the Code and the applicable regulations, with all necessary
shareholder consents included. The Bank's S corporation election has been
accepted by the Internal Revenue Service (the "Service"), is not currently
subject to challenge by the Service, and there are no facts or circumstances
which if discovered by the Service upon examination would result in the
termination of the Bank's S corporation election at any point in time prior to
the Closing.
(c) The Bank has at all times since the effective date of its S
corporation election had only one class of stock outstanding, and at no time has
there existed any instrument (including, but not limited to, certain debt
instruments, options, warrants, or similar instruments, buy-sell agreements and
certain other contractual arrangements) which could be construed to constitute a
second class of stock in violation of Section 1361(b)(1)(D) of the Code.
(d) The Bank has at all times since the effective date of its S
corporation election had 75 or fewer eligible shareholders under Section 1361(b)
of the Code.
(e) The Bank has enforceable contractual agreements with all
shareholders preventing any action, including but not limited to the transfer of
stock to ineligible shareholders, which would cause the termination or
revocation of the S corporation election at any time prior to the Closing.
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(f) Neither the Bank nor its shareholders have filed for a revocation
of the Bank's S corporation election under Section 1362(d) of the Code.
(g) The Bank has made no shareholder distributions or dividends
disproportionate to stock ownership or in any other manner that could create a
second class of stock in violation of Section 1361(b)(1)(D) of the Code.
(h) The Bank has recognized all net built-in gains under Section 1374
of the Code and paid all applicable corporate tax under Section 1374 of the Code
for all periods beginning with the effective date of its S corporation election
and ending with the date of Closing. Recognized built-in gains for this purpose
specifically includes the required recognition of the Bank's tax loan loss
reserve attributable to the period prior to the S corporation election as
taxable income.
(i) The passive investment income of the Bank, as defined in Section
1375(b)(3) of the Code, has not exceeded 25% of the Bank's gross receipts, as
defined in Sections 1375(b)(3) and 1362(d)(3) of the Code, for any period since
the effective date of the S corporation election.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF WHITNEY
Whitney represents and warrants to 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 of 1956, as amended. WNB is a
national banking association duly organized and validly existing and in good
standing under the laws of the United States of America. Whitney 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 and
deliver this 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 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 August 31,
2000, 22,685,104 shares of Whitney Common Stock were issued and outstanding and
1,060,408 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 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
All corporate acts and other proceedings required of Whitney for the
due and valid authorization, execution, delivery and performance of this
Agreement and consummation of the Share Exchange have been validly and
appropriately taken. Subject to such regulatory and board approvals as are
required by law, this Agreement constitutes the legal, valid and binding
obligation of Whitney and is enforceable against Whitney in accordance with the
terms hereof, except to the extent that enforcement may be limited by
bankruptcy, reorganization, insolvency and other similar laws and court
decisions relating to or affecting the enforcement of creditors' rights
generally and by general equitable
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principles. Neither the execution, delivery or performance of this Agreement,
nor the consummation of the transactions contemplated hereby 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 Whitney's properties or
assets under, any of the terms, conditions or provisions of its articles of
incorporation 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 the Bank 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 June 30, 2000 of Whitney and its consolidated
subsidiaries and the related unaudited statements of operations and cash flows
for the six-month period then ended, as presented in Whitney's quarterly report
on Form 10-Q 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.
4.05. LEGALITY OF WHITNEY SECURITIES
All shares of Whitney Common Stock to be issued pursuant to the Share
Exchange 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 the Bank 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
June 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
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"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 regulatory authority 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 regulatory
authority 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.
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. (a) INVESTIGATIONS; PLANNING
The Bank shall continue to provide to Whitney and to its 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 its
representatives with such financial and operating data and other information of
any kind respecting its business and properties as Whitney shall from time to
time reasonably request.
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Any investigation shall be conducted in a manner which
does not unreasonably interfere with the operation of the business of the Bank.
The Bank agrees to cooperate with Whitney in connection with planning for the
efficient and orderly combination of the parties and the operation of the Bank
after consummation of the Share Exchange. In the event of termination of this
Agreement prior to the Effective Date, Whitney shall, except to any extent
necessary to assert any rights under this Agreement, 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 the Bank 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. Whitney shall continue to provide the Bank's
executive officers with access to its executive officers, during normal business
hours and upon reasonable notice, to discuss the business and affairs of Whitney
to the extent customary in transactions of the nature contemplated by this
Agreement.
5.01 (b) DELIVERY OF SCHEDULES OF EXCEPTIONS; DUE DILIGENCE
Whitney and the Bank stipulate that they have entered into this
Agreement prior to the Bank's delivery of its schedule of exceptions to this
Agreement (the "Schedule of Exceptions") and prior to Whitney's completion of
Whitney's customary due diligence investigation of the Bank. The Bank shall
deliver to Whitney, on or before the 14th day following the date hereof, its
Schedule of Exceptions. Whitney's due diligence review shall be concluded during
a 14 calendar day period commencing on September 25, 2000 (the "Review Period").
Upon Whitney's review and acceptance of the Schedule of Exceptions, such
Schedules shall be initialed on behalf of Whitney and the Bank, shall be
appended hereto and shall form a part hereof for all purposes. If the Bank fails
to deliver its Schedule of Exceptions on or before the 14th day following the
date hereof, Whitney may terminate this Agreement without liability by giving
written notice of termination to the Bank. At or prior to expiration of the
Review Period, Whitney shall elect, by written notice to the Bank, to either (a)
proceed to the Closing (subject to the satisfaction or waiver of all other
conditions to Closing) or (b) terminate the Agreement (without liability to the
Bank) if, in its sole and absolute discretion, it is not satisfied with the
results of such due diligence review or for any other reason. Absent timely
delivery of written notice electing to terminate this Agreement, Whitney shall
be deemed to have elected to proceed to the Closing, subject to all other terms
and conditions of this Agreement.
5.02. COOPERATION AND BEST EFFORTS
Each of the parties hereto will cooperate with the other parties and
use its best efforts to (a) procure all necessary consents and approvals of
third parties, (b) complete all necessary filings, registrations, applications,
schedules and certificates, (c) satisfy all requirements prescribed by law for,
and all conditions set forth in this Agreement to, the consummation of the Share
Exchange and the transactions contemplated hereby (d) effect the transactions
contemplated by this Agreement at the earliest practicable date, subject to the
proviso in subsection 5.13(a) 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 5.13 and the Proxy Statement (as
hereinafter defined) 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 the Bank's shareholders for
approval. Each of the parties will as promptly as practicable after the date
hereof furnish all such data and information relating to it and its subsidiaries
as any of the other parties may reasonably request for the purpose of including
such data and information in the Registration Statement and the Proxy Statement.
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5.04. BANK SHAREHOLDER APPROVAL
The Bank'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 the Bank duly called and convened for that purpose as soon as
practicable after the effective date of the Registration Statement. The
foregoing obligations of the Bank and its Board of Directors specified in this
Section 5.04 are subject to the proviso in the last sentence of Section 5.11.
5.05. PRESS RELEASES
Whitney and the Bank 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, neither the Bank nor
Whitney 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-Share Exchange
combined operations of Whitney to permit the "pooling of interest" restrictions
on transfers of Whitney Common Stock set forth in the Affiliate Letters referred
to in Section 5.09 to be terminated.
5.06. PRESERVATION OF BUSINESS
To the extent consistent with sound business practices, the Bank 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
The Bank 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
distributions 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;
(d) except in the ordinary course of business consistent with past
practices, place or suffer to exist on any of its assets or properties any
mortgage, pledge, lien, charge or other encumbrance, except those of the
character described in clauses (i) through (iv) of subsection 3.09(a) hereof, or
cancel any material indebtedness owing to it or any
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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;
(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 Share Exchange set forth in Section 6 hereof 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) 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) 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 the Bank's
applicable regulatory lending limits;
(n) take or cause to be taken any action which would disqualify the
Share Exchange 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
The Bank will provide Whitney with prompt written notice of any
material adverse change in the financial condition, results of operations,
business or prospects of the Bank, or any material action taken or proposed to
be taken by any regulatory agency. The Bank will provide Whitney and Whitney
will provide the Bank with (a) prompt written notice of any material breach by
the Bank and any member of Whitney's consolidated group of any of their
respective warranties, representations or covenants in this Agreement, (b) as
soon as they become available, as to the Bank, true 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 the Bank, and the related unaudited statements of income,
shareholders' equity and cash flows for the periods then ended; and, as to
Whitney, true and complete copies
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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. RESTRICTED WHITNEY COMMON STOCK
The Bank 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 the Bank or a 5% or greater beneficial owner of
securities of the Bank who will receive shares of Whitney Common Stock by virtue
of the Share Exchange to the effect that such person (i) will not dispose of any
Bank Common Stock or any Whitney Common Stock received pursuant to the Share
Exchange 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 and (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-Share Exchange combined operations following the Effective
Date (the "Affiliate's Letter").
5.10. LOAN POLICY
From the date hereof through the Effective Time, the Bank will not make
any loans, or enter into any commitments to make loans, which vary other than in
immaterial respects from its written loan policies, a true and correct copy of
which loan policies has been provided to Whitney, provided that this covenant
shall not prohibit 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.
5.11. NO SOLICITATIONS
Prior to the Effective Time or until the termination of this Agreement,
the Bank shall not, 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 the Bank in good
faith, after consultation with its financial advisors and its legal counsel, to
be required to discharge properly the directors' fiduciary duties to the Bank
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 the Bank of the Share Exchange 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 the Bank and Whitney); and the Bank shall
instruct its officers, directors, agents and affiliates to refrain from doing
any of the above, and will notify Whitney immediately if any such inquiries or
proposals are received by it, any such information is requested from it, or any
such negotiations or discussions are sought to be initiated with it or any of
its officers, directors, agents and affiliates; provided, however, that nothing
contained herein shall be deemed to prohibit any officer or director of the Bank
from taking any action that the Board of Directors of the Bank 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 the Bank and
its shareholders.
5.12. OPERATING FUNCTIONS
The Bank 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 the Bank's Board of Directors, would adversely affect its operations
if the Share Exchange were not consummated.
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5.13. 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 Bank Common Stock
pursuant to the Share Exchange; 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 the Bank) 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 the Bank except to the extent
that the transfer of any shares of Whitney Common Stock received by shareholders
of the Bank 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 the Bank and its
directors, officers and other persons, if any, who control the Bank 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 the Bank or any officer, director or affiliate of the Bank for use
therein.
(c) Promptly after receipt by an indemnified party under subparagraph
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against Whitney under such
subparagraph, notify Whitney in writing of the commencement thereof. In case any
such action shall be brought against any indemnified party and it shall notify
Whitney of the commencement thereof, Whitney shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and, after
notice from Whitney to such indemnified party of its election so to assume the
defense thereof, Whitney shall not be liable to such indemnified party under
such subparagraph for any legal expenses of other counsel or any other expenses
subsequently incurred by such indemnified party; provided, however, if Whitney
elects not to assume such defense or if counsel for the indemnified party
advises Whitney in writing that there are material substantive issues which
raise conflicts of interest between Whitney or the Bank 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.
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(d) The provisions of subsections 5.13(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.
5.14. APPLICATION TO REGULATORY AUTHORITIES
Whitney shall prepare and file or cause to be filed, as promptly as
practicable, all regulatory applications and filings which are required to be
made with respect to the Share Exchange.
5.15. REVENUE RULING
Whitney may elect to prepare (and in that event the Bank 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.
5.16. BOND FOR LOST CERTIFICATES
Upon receipt of notice from any of its shareholders that a certificate
representing Bank Common Stock has been lost or destroyed and prior to issuing a
new certificate, the Bank shall require such shareholder to post a bond in such
amount as is sufficient to support the shareholder's agreement to indemnify the
Bank against any claim made by the owner of such certificate, unless Whitney
agrees to the waiver of such bond requirement.
5.17. DISSENTERS
The Bank shall give Whitney (i) prompt written notice of, and a copy
of, any instrument received by the Bank with respect to the assertion or
perfection of dissenters' rights, and (ii) the opportunity to participate in any
and all negotiations and proceedings with respect to dissenters' rights, should
Whitney desire to do so.
5.18. WITHHOLDING
Whitney shall be entitled to deduct and withhold from the consideration
otherwise payable to any holder of Bank 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 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 Share Exchange 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:
(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 the Bank's Articles of
Association and Bylaws as in effect as of the date of this Agreement with
respect to matters occurring at or prior to the Effective Time (an "Indemnified
Party") shall survive the Share Exchange 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
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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 either of the Constituent Corporations under such
subparagraph, notify the Constituent Corporations in writing of the commencement
thereof. In case any such action shall be brought against any Indemnified Party,
the Constituent Corporations 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 either
Constituent Corporation to such Indemnified Party of its election so to assume
the defense thereof, such Constituent Corporation 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 either Constituent Corporation elects not to assume such
defense or if counsel for the Indemnified Party advises the Constituent
Corporations in writing that there are material substantive issues which raise
conflicts of interest between Whitney or the Bank and the Indemnified Party,
such Indemnified Party may retain counsel satisfactory to it, and the
Constituent Corporations, as applicable, shall pay all reasonable fees and
expenses of such counsel for the Indemnified Party promptly as statements
therefor are received. Notwithstanding the foregoing, the Constituent
Corporations 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) The Bank shall cause the persons serving as officers or directors
of the Bank, 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 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 150% of the most
current annual premium paid by the Bank for its directors and officers liability
insurance, without Whitney's prior approval. The Bank 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 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 the Bank at the Effective Time shall remain employees
of the Bank upon consummation of the Share Exchange. Although Whitney will use
its best efforts to retain the Bank's employees either in their existing
positions or other positions in the Whitney system, Whitney reserves the right,
subject to the terms and provisions of those certain Retention Agreements
between the Bank and certain of its employees as set forth on Exhibit 5.21, 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
the Bank 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 Bank employees who are employed at the
Effective Time shall be given full credit
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for all prior service as employees of the Bank provided, however, that all such
employees shall be treated as newly hired WNB employees (i.e., prior service
credit with 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 the Bank of
the shares of Whitney Common Stock received by them in the Share Exchange. In
the event of any proposed sale of such Whitney Common Stock by any such former
shareholder of Bank Common Stock who receives shares of Whitney Common Stock by
reason of the Share Exchange, Whitney covenants to use its best efforts to
cooperate with such shareholder so as to enable such sale to be made in
accordance with the requirements of Whitney's transfer agents and the reasonable
requirements of the broker through which such sale is proposed to be executed.
Without limiting the generality of the foregoing, Whitney agrees to furnish,
upon request and at its expense, to the extent it is able, with respect to each
such sale a written statement certifying that Whitney has filed all reports
required to be filed by it under the Exchange Act for a period of at least one
year preceding the sale of the proposed sale, and, in addition, has filed the
most recent annual report required to be filed by it thereunder. Notwithstanding
anything contained in this Section 5.22, Whitney shall not be required to
maintain the registration of the Whitney Common Stock under Section 12 of the
Exchange Act if it shall at any time be entitled to deregister those shares
pursuant to the Exchange Act and the rules and regulations thereunder.
5.23. WHITNEY CONDUCT OF BUSINESS
From the date hereof through the Closing, without the prior written
consent of the chief executive officer of the Bank or his duly authorized
designee, Whitney shall not take or cause to be taken any action that would
disqualify the Share Exchange as a "pooling of interests" for accounting
purposes or as a "reorganization" within the meaning of Section 368(a) of the
Code.
SECTION 6. CONDITIONS OF CLOSING
6.01. CONDITIONS OF ALL PARTIES
The obligations of each of the parties hereto to consummate the Share
Exchange are subject to the satisfaction of the following conditions at or prior
to the Closing:
(a) Shareholder Approval. This Agreement shall have been duly approved
by the shareholders of the Bank.
(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 to obtain damages
or other relief in connection with the execution of this Agreement or the
consummation of the transactions contemplated hereby; and no governmental agency
shall have given notice to any party hereto to the effect that consummation of
the transactions contemplated by this Agreement would constitute a violation of
any law or that it intends to commence
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proceedings to restrain consummation of the Share Exchange.
(d) Statutory Requirements and Regulatory Approval. All statutory
requirements for the valid consummation of the transactions contemplated by this
Agreement shall have been fulfilled; all appropriate orders, consents and
approvals from all regulatory agencies and other governmental authorities whose
order, consent or approval is required by law for the consummation of the
transactions contemplated by this Agreement shall have been received; and the
terms of all requisite orders, consents and approvals shall then permit the
effectuation of the Share Exchange without imposing any material conditions with
respect thereto except for any such conditions that are acceptable to Whitney.
(e) Tax Opinion. Whitney and the Bank 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 Share
Exchange, including an opinion that the receipt of Whitney Common Stock by the
Bank's shareholders will not be a taxable event to such shareholders.
6.02. ADDITIONAL CONDITIONS OF WHITNEY
The obligations of Whitney to consummate the Share Exchange 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 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 the Bank
shall have in all material respects performed all obligations and complied with
all covenants required by this Agreement to be performed or complied with by it
at or prior to the Closing. In addition, the Bank shall have delivered to
Whitney 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) No Material Adverse Change. There shall not have occurred any
material adverse change from the date of the Latest Balance Sheet to the Closing
Date in the financial condition, results of operations or business of the Bank;
provided, however, that (i) the incurrence by the Bank of reasonable expenses in
connection with the Share Exchange (including fees and expenses of attorneys,
accountants or other consultants not to exceed $125,000 and (ii) the occurrence
of an event specifically permitted under Section 5.07 or otherwise expressly
consented to in writing by Whitney, are expressly deemed not to constitute such
a material adverse change.
(c) Accountants' Letters. Whitney shall have received "comfort" letters
from Harper & Pearson ("Harper"), independent public accountants for the Bank,
dated, respectively, within three (3) days prior to the date of the Proxy
Statement and within three (3) days prior to the Closing Date, in customary form
for transactions of this sort and in substance satisfactory to Whitney.
(d) Opinion of Counsel. Whitney shall have received from Winstead
Sechrest & Minick PC, counsel to the Bank, an opinion, dated as of the Closing
Date, customary in scope and in form and substance satisfactory to Whitney. In
giving such opinion, such counsel may rely as to questions of fact upon
certificates of one or more officers of the Bank and governmental officials.
(e) Tax Consequences of Share Exchange. Whitney shall have received
satisfactory assurances from its independent accountants that the consummation
of the Share Exchange will not be a taxable event to Whitney and WNB.
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(f) Pooling of Interests. Within thirty (30) days after the date hereof
and within three (3) days prior to the Closing Date, Harper 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 Harper,
Whitney will be permitted to account for the Share Exchange 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 do not
qualify for pooling of interests accounting treatment.
(g) Affiliate's Letter. An Affiliate Letter substantially in the form
specified on Exhibit 6.02(g) hereto (as contemplated by Section 5.09) shall have
been executed by each person who serves as an executive officer or director of
the Bank or who owns 5% or more of Bank 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 Affiliate's Letter 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 Share Exchange 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 the Bank, including (without limitation) any proposed
amendment to any existing agreement, memorandum, letter, order or decree, formal
or informal, between any regulator and the Bank, 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
Share Exchange.
6.03. ADDITIONAL CONDITIONS OF THE BANK
The obligations of the Bank to consummate the Share Exchange 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 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 Whitney shall have in
all material respects performed all obligations and complied with all covenants
required by this Agreement to be performed or complied with by it at or prior to
the Closing. In addition, Whitney shall have delivered to 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. The Bank shall have received from Phelps Dunbar
LLP, counsel for Whitney, an opinion, dated as of the Closing Date, customary in
scope and in form and substance satisfactory to 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) No Material Adverse Change. There shall not have occurred any
material adverse change from the date of Whitney's Latest Balance Sheet to the
Effective Date in the financial condition, results of operations or business of
Whitney's consolidated group taken as a whole.
(d) 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.
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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. 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 may be terminated and the Share Exchange contemplated
herein abandoned at any time before the Effective Time, whether before or after
approval by the shareholders of the Bank as follows:
(a) Mutual Consent. By the mutual consent of the Boards of Directors of
Whitney and the Bank.
(b) Breach. By the Board of Directors of Whitney in the event of a
breach by the Bank, or by the Board of Directors of the Bank in the event of a
breach by any member of Whitney's consolidated group, 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 the
Bank if (i) all conditions to Closing of such party required by Section 6 hereof
have not been met by or waived by March 31, 2001, or (ii) any such condition
cannot be met by March 31, 2001 and has not been waived by each party in whose
favor such condition inures, or (iii) if the Share Exchange has not been
consummated by March 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) Dissenting Shareholders. By Whitney, if the number of shares of
Bank Common Stock as to which the holders thereof are, at the time of the
Closing, legally entitled to assert dissenting shareholders 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 Bank
Common Stock that would preclude pooling of interests accounting for the Share
Exchange.
(e) Shareholder Vote. By Whitney if this Agreement or the Share
Exchange fails to receive the requisite vote at any meeting of the Bank's
shareholders called for the purpose of voting thereon.
(f) Bank Recommendation. By Whitney if the Board of Directors of the
Bank (A) shall withdraw, modify or change its recommendation to its shareholders
of this Agreement or the Share Exchange or shall have resolved to do any of the
foregoing or (B) either (x) shall have recommended to the shareholders of the
Bank (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 the Bank; or
(iii) any acquisition, by any person or group, of the beneficial ownership of
15% or more of any class of Bank capital stock; or (y) shall have made any
announcement of any agreement to do any of the foregoing.
(g) Acquisition Transaction. By the Bank in the event the Bank receives
a bona fide written offer with respect to an Acquisition Transaction and the
Board of Directors of the Bank determines in good faith, after consultation with
its financial advisors and counsel, that such Acquisition Transaction is more
favorable to the Bank's shareholders than the transactions contemplated by this
Agreement.
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(h) Prior to Notification Date. By Whitney by delivery of a notice to
terminate this Agreement pursuant to Section 5.01.
7.02. EFFECT OF TERMINATION; SURVIVAL
Upon termination of this Agreement pursuant to this Section 7, this
Agreement shall be void and of no effect, and there shall be no liability by
reason of this Agreement, or the termination thereof, on the part of any party
or their respective directors, officers, employees, agents or shareholders
except for any liability or obligation of a party hereto arising out of or under
(i) an intentional breach of any representation, warranty or covenant in this
Agreement prior to the date of termination, except if such breach was required
by law or by any bank or bank holding company regulatory authority or (ii) a
breach of any covenant that survives pursuant to the following sentence. The
following provisions shall survive any termination of this Agreement: the last
sentence of subsection 5.01(a), subsections 5.13(b), (c) and (d), Section 7.02
and Section 8.
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
transactions herein 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
with copies to: Joseph S. Schwertz, Jr., Esq.
Whitney National Bank
Legal Department
228 St. Charles Avenue
New Orleans, Louisiana 70130
If to the Bank: Mr. David R. Wilson
Chairman of the Board and CEO
American Bank
1600 Smith Street
Houston, Texas 77002
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<PAGE> 71
with copies to: Ross D. Margraves, Jr., Esq.
Winstead Sechrest & Minick PC
2400 Bank One Center, 910 Travis
Houston, Texas 77002-5895
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 Share
Exchange is consummated, all expenses incurred in connection with this Agreement
and the transactions contemplated hereby 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 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, all prior agreements and understandings being
superseded hereby.
8.07. CHOICE OF LAW
Except as provided in this Section 8.07, the validity of this
Agreement, the construction of its 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. Matters concerning the effectiveness and validity of the
Share Exchange under Texas law shall be governed by and construed in accordance
with the TBCA and the TFC.
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 the Bank or any member of Whitney's
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 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, except as expressly provided
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for herein.
8.09. AMENDMENT
The parties may, by mutual agreement of their respective Boards of
Directors, amend, modify or supplement this Agreement, or any exhibit or
schedule of this Agreement, 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
transactions contemplated hereby 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
non-satisfaction 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.
WHITNEY HOLDING CORPORATION
BY: /s/ William L. Marks
--------------------------------
William L. Marks
ITS: Chairman and CEO
AMERICAN BANK
BY: /s/ David R. Wilson
--------------------------------
David R. Wilson
ITS: Chairman and CEO
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<PAGE> 73
EXHIBIT 1.02
ARTICLES OF SHARE EXCHANGE
OF
AMERICAN BANK
AND
WHITNEY HOLDING CORPORATION
Pursuant to the provisions of Section 32.008 of the Texas Finance Code
and Article 5.02 of the Texas Business Corporation Act, Whitney Holding
Corporation and American Bank (collectively, the "Parties") certify the
following articles of share exchange for the purpose of effecting an exchange in
which Whitney Holding Corporation will acquire all of the outstanding shares of
common stock, par value $10.00 per share of American Bank in accordance with the
provisions of Section 32.008 of the Texas Finance Code and Part Five of the
Texas Business Corporation Act.
ARTICLE I
The name of the Parties to the plan of exchange, the type of entity
each party is and the laws under which each party is organized are set forth
below:
<TABLE>
<CAPTION>
State of
Name of Party Type of Entity Organization
------------- -------------- ------------
<S> <C> <C>
Whitney Holding Corporation Corporation Louisiana
American Bank Bank Texas
</TABLE>
ARTICLE II
A plan of exchange (the "Plan of Exchange") was approved and adopted in
accordance with the provisions of Article 5.03 of the Texas Business Corporation
Act and Section 32.008 of the Texas Finance Code providing for the acquisition
of all of the outstanding shares of common stock, par value $10.00 per share, of
American Bank by Whitney Holding Corporation.
ARTICLE III
An executed copy of the Plan of Exchange is on file at the principal
place of business of Whitney Holding Corporation, 228 St. Charles Avenue, New
Orleans, Louisiana 70130 and at American Bank, 1600 Smith Street, Houston, Texas
77002, and a copy of the Plan of Exchange will be furnished by Whitney Holding
Corporation or American Bank, on written request and without cost, to any
shareholder of American Bank and to any creditor or obligee of the Parties at
the time of the exchange if such obligation is then outstanding.
ARTICLE IV
The Restated Articles of Association of American Bank are attached
hereto as EXHIBIT A. No amendments to the Articles of Association of American
Bank are to be effected by the exchange.
ARTICLE V
No new domestic financial institution, corporation or other entity will
be created pursuant to the Plan of Exchange.
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<PAGE> 74
ARTICLE VI
The approval of the shareholders of Whitney Holding Corporation is not
required. As to American Bank, the number of outstanding shares of each class or
series of stock entitled to vote, with other shares or as a class on the Plan of
Exchange, are as follows:
<TABLE>
<CAPTION>
Number of Number of
Shares Shares Entitled to Vote
Name of Merging Party Outstanding Class or Series as a Class or Series
--------------------- ----------- --------------- ------------------------
<S> <C> <C> <C>
American Bank 411,750 Common 411,750
</TABLE>
ARTICLE VII
The total number of shares of common stock of American Bank voted for
and against the Plan of Exchange are as follows:
<TABLE>
<CAPTION>
Total Total
Name of Merging Party Voted For Voted Against Class or Series
--------------------- --------- ------------- ---------------
<S> <C> <C> <C>
American Bank _______ _______ Common
</TABLE>
ARTICLE VIII
The Plan of Exchange and the performance of its terms were duly
authorized by all action required by the laws under which Whitney Holding
Corporation was incorporated and by its constituent documents.
ARTICLE IX
American Bank will be responsible for and obligated to pay all fees and
franchise taxes of each Party if same are not timely paid.
ARTICLE X
The share exchange will become effective at ___________ o'clock p.m.
Central Daylight Savings Time on ______________, 200__ in accordance with the
provisions of Article 10.03 of the Texas Business Corporation Act.
Dated as of _____________, 200__.
WHITNEY HOLDING CORPORATION
By:
------------------------------
William L. Marks
Its: Chairman and CEO
AMERICAN BANK
By:
------------------------------
David R. Wilson
Its: Chairman and CEO
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<PAGE> 75
EXHIBIT "A" TO
EXHIBIT 1.02
RESTATED ARTICLES OF ASSOCIATION
OF
AMERICAN BANK
1. American Bank, pursuant to the provisions of Section 32.008 of the
Texas Finance Code and Article 4.07 of the Texas Business Corporation Act,
hereby adopts restated articles of association which accurately copy the
articles of association and all amendments thereto that are in effect to date
and such restated articles of association contain no change in any provision
thereof.
2. The restated articles of association were adopted by resolution of
the board of directors of the Bank on the ____ day of ___________, 200__.
3. The articles of association and all amendments and supplements
thereto are hereby superseded by the following restated articles of association
which accurately copy the entire text thereof:
ARTICLES OF ASSOCIATION
OF
AMERICAN BANK
FIRST
The name of the Corporation shall be AMERICAN BANK.
SECOND
It shall be located at, and its place of business shall be 1600 Smith
Street Building in the city of Houston, County of Harris, Texas.
THIRD
The Corporation shall have the following powers:
(a) To receive time and demand deposits at interest or without
interest; to lend money with or without security at interest; and to
buy, sell and discount bonds, negotiable instruments and other
evidences of indebtedness;
(b) To act as fiscal agent or transfer agent and in such capacity to
receive and disburse money and to transfer registered and countersigned
certificates of stock, bonds or other evidences of indebtedness;
(c) To act as trustee under any mortgage or bond issue and to accept
and execute any trust not inconsistent with the laws of this state;
(d) To act under the order or appointment of any court of record,
without giving bond, as guardian, receiver, trustee, executor,
administrator, and, although without general depository powers, as
depository for any moneys paid into court;
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<PAGE> 76
(e) To purchase, invest in, and sell bills of exchange, bonds,
mortgages and other evidences of indebtedness, and to lend money and to
charge and collect interest thereon, in advance or otherwise;
(f) To receive savings deposits with or without the payment of
interest;
(g) To receive time deposits with or without the payment of interest;
(h) To issue, sell and negotiate notes, bonds, and other evidences of
indebtedness, and in addition, to issue and sell, for cash or on an
installment basis, investment certificates, creating no relation of
debtor and creditor between the bank and the holder, to be retired
solely out of specified surplus, reserves, or special retirement
account, and containing such provisions relative to yield, retirement,
penalties, withdrawal values, and obligations of the issuing bank as
may be approved by the Commissioner.
FOURTH
The aggregate number of shares which the Corporation shall have
authority to issue is one million (1,000,000) shares each of which shall have a
par value of TEN AND NO/100 DOLLARS ($10.00) each. The Corporation shall have
the authority to purchase, directly or indirectly, its own shares to the extent
of the aggregate of unrestricted capital surplus available therefor and
unrestricted reduction surplus available therefor.
FIFTH
The corporation shall exist and be in force perpetually.
SIXTH
The Board of Directors shall consist of 5 stockholders, each of whom
shall be a bona fide owner of at least 100 shares of the capital stock of the
Corporation, and a majority shall be bona fide resident citizens of the State of
Texas. The names and addresses of the persons now serving as directors of the
bank until the next annual meeting of the shareholders or until their successors
are elected and qualified are:
James H. Bray, D.V.M.
Robert R. Franklin, M.D.
Robert R. Franklin, Jr.
John W. Hazard
Ross D. Margraves, Jr.
H. O. "Neal" Myers
J. Victor Samuels
David R. Wilson
Duke Woodward
[waiting for addresses to insert]
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<PAGE> 77
SEVENTH
The names and residences of all subscribers to the capital stock of the
Corporation, and the number of shares subscribed by each, are written below by
each of said subscribers, respectively.
The names and residences of all subscribers to the capital stock of the
Corporation and the number of shares subscribed by each original
subscriber are as stated in the original Articles of Association as
filed with the Texas Department of Banking.
Dated this _____ day of ___________, 200___.
AMERICAN BANK
By:
-----------------------------
Its Authorized Officer
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<PAGE> 78
EXHIBIT 1.04
RESTATED ARTICLES OF ASSOCIATION
OF
AMERICAN BANK
1. American Bank, pursuant to the provisions of Section 32.008 of the
Texas Finance Code and Article 4.07 of the Texas Business Corporation Act,
hereby adopts restated articles of association which accurately copy the
articles of association and all amendments thereto that are in effect to date
and such restated articles of association contain no change in any provision
thereof.
2. The restated articles of association were adopted by resolution of
the board of directors of the Bank on the ____ day of ___________, 200__.
3. The articles of association and all amendments and supplements
thereto are hereby superseded by the following restated articles of association
which accurately copy the entire text thereof:
ARTICLES OF ASSOCIATION
OF
AMERICAN BANK
FIRST
The name of the Corporation shall be AMERICAN BANK.
SECOND
It shall be located at, and its place of business shall be 1600 Smith
Street Building in the city of Houston, County of Harris, Texas.
THIRD
The Corporation shall have the following powers:
(a) To receive time and demand deposits at interest or without
interest; to lend money with or without security at interest; and to
buy, sell and discount bonds, negotiable instruments and other
evidences of indebtedness;
(b) To act as fiscal agent or transfer agent and in such capacity to
receive and disburse money and to transfer registered and countersigned
certificates of stock, bonds or other evidences of indebtedness;
(c) To act as trustee under any mortgage or bond issue and to accept
and execute any trust not inconsistent with the laws of this state;
(d) To act under the order or appointment of any court of record,
without giving bond, as guardian, receiver, trustee, executor,
administrator, and, although without general depository powers, as
depository for any moneys paid into court;
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<PAGE> 79
(e) To purchase, invest in, and sell bills of exchange, bonds,
mortgages and other evidences of indebtedness, and to lend money and to
charge and collect interest thereon, in advance or otherwise;
(f) To receive savings deposits with or without the payment of
interest;
(g) To receive time deposits with or without the payment of interest;
(h) To issue, sell and negotiate notes, bonds, and other evidences of
indebtedness, and in addition, to issue and sell, for cash or on an
installment basis, investment certificates, creating no relation of
debtor and creditor between the bank and the holder, to be retired
solely out of specified surplus, reserves, or special retirement
account, and containing such provisions relative to yield, retirement,
penalties, withdrawal values, and obligations of the issuing bank as
may be approved by the Commissioner.
FOURTH
The aggregate number of shares which the Corporation shall have
authority to issue is one million (1,000,000) shares each of which shall have a
par value of TEN AND NO/100 DOLLARS ($10.00) each. The Corporation shall have
the authority to purchase, directly or indirectly, its own shares to the extent
of the aggregate of unrestricted capital surplus available therefor and
unrestricted reduction surplus available therefor.
FIFTH
The corporation shall exist and be in force perpetually.
SIXTH
The Board of Directors shall consist of 5 stockholders, each of whom
shall be a bona fide owner of at least 100 shares of the capital stock of the
Corporation, and a majority shall be bona fide resident citizens of the State of
Texas. The names and addresses of the persons now serving as directors of the
bank until the next annual meeting of the shareholders or until their successors
are elected and qualified are:
James H. Bray, D.V.M.
Robert R. Franklin, M.D.
Robert R. Franklin, Jr.
John W. Hazard
Ross D. Margraves, Jr.
H. O. "Neal" Myers
J. Victor Samuels
David R. Wilson
Duke Woodward
[waiting for addresses to insert]
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<PAGE> 80
SEVENTH
The names and residences of all subscribers to the capital stock of the
Corporation, and the number of shares subscribed by each, are written below by
each of said subscribers, respectively.
The names and residences of all subscribers to the capital stock of the
Corporation and the number of shares subscribed by each original
subscriber are as stated in the original Articles of Association as
filed with the Texas Department of Banking.
Dated this day of , 200 .
---------- -------------------------------- ----
AMERICAN BANK
By:
-----------------------------
Its Authorized Officer
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<PAGE> 81
EXHIBIT 5.21 TO
AGREEMENT AND PLAN OF SHARE EXCHANGE
Retention Agreement entered into as of March 24, 1999 by and between
American Bank and A. F. Celinski, Jr.
Retention Agreement entered into as of March 23, 1999 by and between
American Bank and James L. Hacker.
Retention Agreement entered into as of March 23, 1999 by and between
American Bank and Charles S. Keever.
Retention Agreement entered into as of March 23, 1999 by and between
American Bank and Bruce W. Reed.
Retention Agreement entered into as of March 23, 1999 by and between
American Bank and Philip L. Davis.
Retention Agreement entered into as of March 24, 1999 by and between
American Bank and Andrew Dow.
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<PAGE> 82
EXHIBIT 6.02(g) TO
AGREEMENT AND PLAN OF SHARE EXCHANGE
[Letter from directors, executive officers
and 5% or greater beneficial shareholders of the Bank]
[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
American Bank (the "Bank") from the Agreement and Plan of Share Exchange dated
September ___, 2000 (the "Agreement") between the Bank and Whitney Holding
Corporation ("Whitney"), I agree as follows:
In addition to the restrictions and limitations on transfer of stock
set forth in that certain Stock Restriction Agreement made and entered into as
of December 31, 1996 between the Bank and its shareholders, I agree that I will
not, without the prior consent of Whitney, transfer any of my shares of Bank
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 the Bank as a pooling of interests. I understand that my transfer of any
shares of Bank common stock and any Whitney common stock that I receive in
exchange for Bank 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 Bank stock, (or the
Whitney stock which I receive in exchange for my Bank stock) over which I hold
the power to sell, transfer, pledge or otherwise alienate or encumber until:
a. the share exchange 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 Bank
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 Whitney in compliance with Section 2.01(e) of the
Agreement, I will have the right to vote the Whitney shares received in exchange
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 Bank stock which I hold the power
to sell, transfer, pledge or otherwise alienate or encumber are represented by
the following certificates:
A-40
<PAGE> 83
Certificate No. No. of shares
I am aware that Whitney intends to treat the share exchange between the
Bank and Whitney (the "Share Exchange") 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 Share Exchange to qualify
under Section 368. This requirement is satisfied if there is no plan or
intention on the part of the shareholders of the Bank to sell or otherwise
dispose of Whitney stock to be received in the Share Exchange 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 Share Exchange, of less than 50%
of the total fair market value of the Bank stock (other than shares held by the
Bank except in a fiduciary capacity for third persons) outstanding immediately
prior to the Share Exchange. I have no plan or intention to dispose of a number
of shares of Whitney stock to be received by me in the Share Exchange which
would, taking into account any plan or intention on the part of other former
shareholders of the Bank to dispose of shares of Whitney stock received in the
Share Exchange, 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% or greater beneficial shareholder]
<PAGE> 84
APPENDIX B
ARTICLES 5.11, 5.12 AND 5.13 OF THE TEXAS BUSINESS CORPORATION ACT
<PAGE> 85
Art. 5.11. Rights of Dissenting Shareholders in the Event of Certain Corporate
Actions
A. Any shareholder of a domestic corporation shall have the right to dissent
from any of the following corporate actions:
(1) Any plan of merger to which the corporation is a party if shareholder
approval is required by Article 5.03 or 5.16 of this Act and the shareholder
holds shares of a class or series that was entitled to vote thereon as a class
or otherwise;
(2) Any sale, lease, exchange or other disposition (not including any pledge,
mortgage, deed of trust or trust indenture unless otherwise provided in the
articles of incorporation) of all, or substantially all, the property and
assets, with or without good will, of a corporation if special authorization of
the shareholders is required by this Act and the shareholders hold shares of a
class or series that was entitled to vote thereon as a class or otherwise;
(3) Any plan of exchange pursuant to Article 5.02 of this Act in which the
shares of the corporation of the class or series held by the shareholder are to
be acquired.
B. Notwithstanding the provisions of Section A of this Article, a shareholder
shall not have the right to dissent from any plan of merger in which there is a
single surviving or new domestic or foreign corporation, or from any plan of
exchange, if:
(1) the shares held by the shareholder are part of a class or series, shares of
which are on the record date fixed to determine the shareholders entitled to
vote on the plan of merger or plan of exchange:
(a) listed on a national securities exchange;
(b) listed on the Nasdaq Stock Market (or successor quotation system) or
designated as a national market security on an interdealer quotation system by
the National Association of Securities Dealers, Inc., or successor entity; or
(c) held of record by not less than 2,000 holders;
(2) the shareholder is not required by the terms of the plan of merger or plan
of exchange to accept for the shareholder's shares any consideration that is
different than the consideration (other than cash in lieu of fractional shares
that the shareholder would otherwise be entitled to receive) to be provided to
any other holder of shares of the same class or series of shares held by such
shareholder; and
(3) the shareholder is not required by the terms of the plan of merger or the
plan of exchange to accept for the shareholder's shares any consideration other
than:
(a) shares of a domestic or foreign corporation that, immediately after the
effective time of the merger or exchange, will be part of a class or series,
shares of which are:
(i) listed, or authorized for listing upon official notice of issuance, on a
national securities exchange;
(ii) approved for quotation as a national market security on an interdealer
quotation system by the National Association of Securities Dealers, Inc., or
successor entity; or
(iii) held of record by not less than 2,000 holders;
(b) cash in lieu of fractional shares otherwise entitled to be received; or
(c) any combination of the securities and cash described in Subdivisions (a) and
(b) of this subsection.
B-1
<PAGE> 86
Art. 5.12. Procedure for Dissent by Shareholders as to Said Corporate Actions
A. Any shareholder of any domestic corporation who has the right to dissent from
any of the corporate actions referred to in Article 5.11 of this Act may
exercise that right to dissent only by complying with the following procedures:
(1)(a) With respect to proposed corporate action that is submitted to a vote of
shareholders at a meeting, the shareholder shall file with the corporation,
prior to the meeting, a written objection to the action, setting out that the
shareholder's right to dissent will be exercised if the action is effective and
giving the shareholder's address, to which notice thereof shall be delivered or
mailed in that event. If the action is effected and the shareholder shall not
have voted in favor of the action, the corporation, in the case of action other
than a merger, or the surviving or new corporation (foreign or domestic) or
other entity that is liable to discharge the shareholder's right of dissent, in
the case of a merger, shall, within ten (10) days after the action is effected,
deliver or mail to the shareholder written notice that the action has been
effected, and the shareholder may, within ten (10) days from the delivery or
mailing of the notice, make written demand on the existing, surviving, or new
corporation (foreign or domestic) or other entity, as the case may be, for
payment of the fair value of the shareholder's shares. The fair value of the
shares shall be the value thereof as of the day immediately preceding the
meeting, excluding any appreciation or depreciation in anticipation of the
proposed action. The demand shall state the number and class of the shares owned
by the shareholder and the fair value of the shares as estimated by the
shareholder. Any shareholder failing to make demand within the ten (10) day
period shall be bound by the action.
(b) With respect to proposed corporate action that is approved pursuant to
Section A of Article 9.10 of this Act, the corporation, in the case of action
other than a merger, and the surviving or new corporation (foreign or domestic)
or other entity that is liable to discharge the shareholder's right of dissent,
in the case of a merger, shall, within ten (10) days after the date the action
is effected, mail to each shareholder of record as of the effective date of the
action notice of the fact and date of the action and that the shareholder may
exercise the shareholder's right to dissent from the action. The notice shall be
accompanied by a copy of this Article and any articles or documents filed by the
corporation with the Secretary of State to effect the action. If the shareholder
shall not have consented to the taking of the action, the shareholder may,
within twenty (20) days after the mailing of the notice, make written demand on
the existing, surviving, or new corporation (foreign or domestic) or other
entity, as the case may be, for payment of the fair value of the shareholder's
shares. The fair value of the shares shall be the value thereof as of the date
the written consent authorizing the action was delivered to the corporation
pursuant to Section A of Article 9.10 of this Act, excluding any appreciation or
depreciation in anticipation of the action. The demand shall state the number
and class of shares owned by the dissenting shareholder and the fair value of
the shares as estimated by the shareholder. Any shareholder failing to make
demand within the twenty (20) day period shall be bound by the action.
(2) Within twenty (20) days after receipt by the existing, surviving, or new
corporation (foreign or domestic) or other entity, as the case may be, of a
demand for payment made by a dissenting shareholder in accordance with
Subsection (1) of this Section, the corporation (foreign or domestic) or other
entity shall deliver or mail to the shareholder a written notice that shall
either set out that the corporation (foreign or domestic) or other entity
accepts the amount claimed in the demand and agrees to pay that amount within
ninety (90) days after the date on which the action was effected, and, in the
case of shares represented by certificates, upon the surrender of the
certificates duly endorsed, or shall contain an estimate by the corporation
(foreign or domestic) or other entity of the fair value of the shares, together
with an offer to pay the amount of that estimate within ninety (90) days after
the date on which the action was effected, upon receipt of notice within sixty
(60) days after that date from the shareholder that the shareholder agrees to
accept that amount and, in the case of shares represented by certificates, upon
the surrender of the certificates duly endorsed.
(3) If, within sixty (60) days after the date on which the corporate action was
effected, the value of the shares is agreed upon between the shareholder and the
existing, surviving, or new corporation (foreign or domestic) or other entity,
as the case may be, payment for the shares shall be made within ninety (90) days
after the date on which the action was effected and, in the case of shares
represented by certificates, upon surrender of the certificates duly
B-2
<PAGE> 87
endorsed. Upon payment of the agreed value, the shareholder shall cease to have
any interest in the shares or in the corporation.
B. If, within the period of sixty (60) days after the date on which the
corporate action was effected, the shareholder and the existing, surviving, or
new corporation (foreign or domestic) or other entity, as the case may be, do
not so agree, then the shareholder or the corporation (foreign or domestic) or
other entity may, within sixty (60) days after the expiration of the sixty (60)
day period, file a petition in any court of competent jurisdiction in the county
in which the principal office of the domestic corporation is located, asking for
a finding and determination of the fair value of the shareholder's shares. Upon
the filing of any such petition by the shareholder, service of a copy thereof
shall be made upon the corporation (foreign or domestic) or other entity, which
shall, within ten (10) days after service, file in the office of the clerk of
the court in which the petition was filed a list containing the names and
addresses of all shareholders of the domestic corporation who have demanded
payment for their shares and with whom agreements as to the value of their
shares have not been reached by the corporation (foreign or domestic) or other
entity. If the petition shall be filed by the corporation (foreign or domestic)
or other entity, the petition shall be accompanied by such a list. The clerk of
the court shall give notice of the time and place fixed for the hearing of the
petition by registered mail to the corporation (foreign or domestic) or other
entity and to the shareholders named on the list at the addresses therein
stated. The forms of the notices by mail shall be approved by the court. All
shareholders thus notified and the corporation (foreign or domestic) or other
entity shall thereafter be bound by the final judgment of the court.
C. After the hearing of the petition, the court shall determine the shareholders
who have complied with the provisions of this Article and have become entitled
to the valuation of and payment for their shares, and shall appoint one or more
qualified appraisers to determine that value. The appraisers shall have power to
examine any of the books and records of the corporation the shares of which they
are charged with the duty of valuing, and they shall make a determination of the
fair value of the shares upon such investigation as to them may seem proper. The
appraisers shall also afford a reasonable opportunity to the parties interested
to submit to them pertinent evidence as to the value of the shares. The
appraisers shall also have such power and authority as may be conferred on
Masters in Chancery by the Rules of Civil Procedure or by the order of their
appointment.
D. The appraisers shall determine the fair value of the shares of the
shareholders adjudged by the court to be entitled to payment for their shares
and shall file their report of that value in the office of the clerk of the
court. Notice of the filing of the report shall be given by the clerk to the
parties in interest. The report shall be subject to exceptions to be heard
before the court both upon the law and the facts. The court shall by its
judgment determine the fair value of the shares of the shareholders entitled to
payment for their shares and shall direct the payment of that value by the
existing, surviving, or new corporation (foreign or domestic) or other entity,
together with interest thereon, beginning 91 days after the date on which the
applicable corporate action from which the shareholder elected to dissent was
effected to the date of such judgment, to the shareholders entitled to payment.
The judgment shall be payable to the holders of uncertificated shares
immediately but to the holders of shares represented by certificates only upon,
and simultaneously with, the surrender to the existing, surviving, or new
corporation (foreign or domestic) or other entity, as the case may be, of duly
endorsed certificates for those shares. Upon payment of the judgment, the
dissenting shareholders shall cease to have any interest in those shares or in
the corporation. The court shall allow the appraisers a reasonable fee as court
costs, and all court costs shall be allotted between the parties in the manner
that the court determines to be fair and equitable.
E. Shares acquired by the existing, surviving, or new corporation (foreign or
domestic) or other entity, as the case may be, pursuant to the payment of the
agreed value of the shares or pursuant to payment of the judgment entered for
the value of the shares, as in this Article provided, shall, in the case of a
merger, be treated as provided in the plan of merger and, in all other cases,
may be held and disposed of by the corporation as in the case of other treasury
shares.
F. The provisions of this Article shall not apply to a merger if, on the date of
the filing of the articles of merger, the surviving corporation is the owner of
all the outstanding shares of the other corporations, domestic or foreign, that
are parties to the merger.
B-3
<PAGE> 88
G. In the absence of fraud in the transaction, the remedy provided by this
Article to a shareholder objecting to any corporate action referred to in
Article 5.11 of this Act is the exclusive remedy for the recovery of the value
of his shares or money damages to the shareholder with respect to the action. If
the existing, surviving, or new corporation (foreign or domestic) or other
entity, as the case may be, complies with the requirements of this Article, any
shareholder who fails to comply with the requirements of this Article shall not
be entitled to bring suit for the recovery of the value of his shares or money
damages to the shareholder with respect to the action.
Art. 5.13. Provisions Affecting Remedies of Dissenting Shareholders
A. Any shareholder who has demanded payment for his shares in accordance with
either Article 5.12 or 5.16 of this Act shall not thereafter be entitled to vote
or exercise any other rights of a shareholder except the right to receive
payment for his shares pursuant to the provisions of those articles and the
right to maintain an appropriate action to obtain relief on the ground that the
corporate action would be or was fraudulent, and the respective shares for which
payment has been demanded shall not thereafter be considered outstanding for the
purposes of any subsequent vote of shareholders.
B. Upon receiving a demand for payment from any dissenting shareholder, the
corporation shall make an appropriate notation thereof in its shareholder
records. Within twenty (20) days after demanding payment for his shares in
accordance with either Article 5.12 or 5.16 of this Act, each holder of
certificates representing shares so demanding payment shall submit such
certificates to the corporation for notation thereon that such demand has been
made. The failure of holders of certificated shares to do so shall, at the
option of the corporation, terminate such shareholder's rights under Articles
5.12 and 5.16 of this Act unless a court of competent jurisdiction for good and
sufficient cause shown shall otherwise direct. If uncertificated shares for
which payment has been demanded or shares represented by a certificate on which
notation has been so made shall be transferred, any new certificate issued
therefor shall bear similar notation together with the name of the original
dissenting holder of such shares and a transferee of such shares shall acquire
by such transfer no rights in the corporation other than those which the
original dissenting shareholder had after making demand for payment of the fair
value thereof.
C. Any shareholder who has demanded payment for his shares in accordance with
either Article 5.12 or 5.16 of this Act may withdraw such demand at any time
before payment for his shares or before any petition has been filed pursuant to
Article 5.12 or 5.16 of this Act asking for a finding and determination of the
fair value of such shares, but no such demand may be withdrawn after such
payment has been made or, unless the corporation shall consent thereto, after
any such petition has been filed. If, however, such demand shall be withdrawn as
hereinbefore provided, or if pursuant to Section B of this Article the
corporation shall terminate the shareholder's rights under Article 5.12 or 5.16
of this Act, as the case may be, or if no petition asking for a finding and
determination of fair value of such shares by a court shall have been filed
within the time provided in Article 5.12 or 5.16 of this Act, as the case may
be, or if after the hearing of a petition filed pursuant to Article 5.12 or
5.16, the court shall determine that such shareholder is not entitled to the
relief provided by those articles, then, in any such case, such shareholder and
all persons claiming under him shall be conclusively presumed to have approved
and ratified the corporate action from which he dissented and shall be bound
thereby, the right of such shareholder to be paid the fair value of his shares
shall cease, and his status as a shareholder shall be restored without prejudice
to any corporate proceedings which may have been taken during the interim, and
such shareholder shall be entitled to receive any dividends or other
distributions made to shareholders in the interim.
B-4
<PAGE> 89
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:
Exhibit No. Description
2 Agreement and Plan of Share Exchange (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
II-1
<PAGE> 90
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 December 8,
2000.
23.2 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).
99.1 Form of Proxy of American Bank.
(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.
(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
II-2
<PAGE> 91
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> 92
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 8th day of December, 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 December 8, 2000
------------------------------------ and Chief Executive Officer
William L. Marks
/s/ R. King Milling Director and President December 8, 2000
------------------------------------
R. King Milling
/s/ Thomas L. Callicutt, Jr. Executive Vice President and December 8, 2000
------------------------------------ Chief Financial Officer
Thomas L. Callicutt, Jr. (Principal Financial Officer
and Principal Accounting Officer)
/s/ Guy C. Billups, Jr. Director December 8, 2000
------------------------------------
Guy C. Billups, Jr.
</TABLE>
S-1
<PAGE> 93
<TABLE>
<S> <C> <C>
/s/ Harry J. Blumenthal, Jr. Director December 8, 2000
--------------------------------------
Harry J. Blumenthal, Jr.
/s/ Joel B. Bullard, Jr. Director December 8, 2000
--------------------------------------
Joel B. Bullard, Jr.
/s/ James M. Cain Director December 8, 2000
--------------------------------------
James M. Cain
Director December __, 2000
--------------------------------------
Angus R. Cooper, II
/s/ Robert H. Crosby, Jr. Director December 8, 2000
--------------------------------------
Robert H. Crosby, Jr.
/s/ Richard B. Crowell Director December 8, 2000
--------------------------------------
Richard B. Crowell
Director December __, 2000
--------------------------------------
William A. Hines
/s/ John J. Kelly Director December 8, 2000
--------------------------------------
John J. Kelly
/s/ E. James Kock, Jr. Director December 8, 2000
--------------------------------------
E. James Kock, Jr.
/s/ Alfred S. Lippman Director December 8, 2000
--------------------------------------
Alfred S. Lippman
/s/ Eric J. Nickelsen Director December 8, 2000
--------------------------------------
Eric J. Nickelsen
/s/ John G. Phillips Director December 8, 2000
--------------------------------------
John G. Phillips
/s/ John K. Roberts, Jr. Director December 8, 2000
--------------------------------------
John K. Roberts, Jr.
/s/ Carroll W. Suggs Director December 8, 2000
--------------------------------------
Carroll W. Suggs
</TABLE>
S-2
<PAGE> 94
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
2 Agreement and Plan of Share Exchange (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 December 8, 2000.
23.2 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 American Bank.
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