December 4, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N. W.
Washington, D. C. 20549
Re: Hibernia Corporation
Current Report on Form 8-K
Commission File No. 1-10294
Dear Sirs:
Pursuant to rules and regulations adopted under the Securities Exchange
Act of 1934, as amended (the "Act"), transmitted hereby for filing, on behalf of
Hibernia Corporation (the "Company"), is a Current Report on Form 8-K.
Pursuant to Section 13(a) of the Act, by copy hereof we are filing with
the New York Stock Exchange, the national securities exchange on which the
Common Stock of the Company is listed and traded, two complete copies, including
exhibits. Pursuant to General Instruction E to Form 8-K, one such complete copy
being filed with the Exchange has been manually signed on behalf of the Company.
Please call the undersigned at (504) 533-2486 if you have any questions
concerning this filing.
Very truly yours,
/s/ Patricia C. Meringer
Patricia C. Meringer
Corporate Counsel and
Secretary
PCM/mch
Enclosure
cc: Joseph Lomnicky (w/enclosure)
Troy Hester (w/enclosure)
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 4, 1998
Hibernia Corporation
(Exact name of issuer as specified in its charter)
Louisiana 1-10294 72-0724532
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
organization)
313 Carondelet Street, New Orleans, Louisiana 70130
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (504) 533-5332
<PAGE>
Item 5. Other Events
The Registrant includes herein its Description of Capital Stock for the
purpose of incorporating such description by reference into certain registration
statements and other future filings.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of Hibernia Corporation ("Hibernia" or the
"Company") is 400,000,000 shares, consisting of 100,000,000 shares of preferred
stock, no par value, and 300,000,000 shares of Class A voting common stock, no
par value, of which 156,362,536 were outstanding on October 30, 1998. The
following description of the Company's capital stock is qualified in its
entirety by reference to the Company's Articles of Incorporation and By-laws and
to the applicable provisions of the Louisiana Business Corporation Law (the
"LBCL").
Common Stock
Voting Rights - Non-cumulative Voting. Holders of Common Stock are
entitled to one vote per share on all matters to be voted on by the shareholders
of the Company.
Holders of Common Stock do not have cumulative voting rights. As a
result, the holders of more than 50% of the Common Stock may elect all of the
directors of the Company.
Dividend Rights. Holders of outstanding Common Stock are entitled to
receive such dividends, if any, as may be declared by the Board of Directors of
the Company, in its discretion, out of funds legally available therefor.
Liquidation Rights. In the event of the liquidation of the Company, the
holders of Common Stock are entitled to receive pro rata any assets
distributable to shareholders in respect of their shares.
No Preemptive Rights. Holders of Common Stock do not have the right
to subscribe to any additional capital stock that may be issued by Hibernia.
Stock Exchange Listing. The Company's Common Stock is listed on the
New York Stock Exchange, Inc.("NYSE") and is traded on the NYSE. The market
price of the Company's Common Stock as reflected by trading on the NYSE is
published in the Wall Street Journal and certain daily and other newspapers
and publications nationwide.
<PAGE>
Preferred Stock
The Board of Directors of Hibernia is authorized to issue up to an
aggregate of 100,000,000 shares of preferred stock, which preferred stock may
have the rights, preferences, terms and obligations established by the Board.
Fixed/Adjustable Rate Preferred Stock
In September, 1996, the Company issued 2,000,000 shares of
Fixed/Adjustable Rate Non-Cumulative Preferred Stock, Series A (the "Series A
Preferred Stock"). The Series A Preferred Stock has a $50.00 liquidation
preference per share.
Dividends. Dividends are payable quarterly on the Series A Preferred
Stock at a rate of 6.90% per annum through October 1, 2001. Thereafter, the
dividend rate will be no less that 7.40% and no greater than 13.40% and will be
based upon .95% plus the highest of the Treasury Bill Rate, the Ten-Year
Constant Maturity Rate and the Thirty-Year Constant Maturity Rate (as those
terms are defined in the Company's Articles of Incorporation).
Dividends on the Series A Preferred Stock are not cumulative.
No rights accrue to the holders of the Series A Preferred Stock as a
result of a failure to declare a pay dividends on that stock, whether or not the
earnings of Hibernia are sufficient to pay those dividends.
If the Internal Revenue Code is amended to change the percentage of the
dividends received deduction, or if an amendment eliminates the dividends
received deduction, the amount of each dividend payable on a Series A Preferred
Stock thereafter will be adjusted. The formula by which this adjustment will be
calculated is included in the Company's Articles of Incorporation, as amended to
date.
Liquidation Rights. In the event of a voluntary or an involuntary
liquidation of the Company, the holders of the Series A Preferred Stock are
entitled to receive $50.00 per share plus accrued and unpaid dividends (whether
or not declared) from the immediately preceding payment date. These payments
must be made to Series A Preferred Stock before any distribution of assets is
made to holders of Common Stock or any other shares of stock of Hibernia that
rank below the Series A Preferred Stock for purposes of such a distribution.
After such a liquidating distribution is made, holders of Series A Preferred
Stock would not entitled to any further participation in the distribution of the
assets of the Company.
Redemption. The Series A Preferred Stock is not subject to any
mandatory redemption, sinking fund or other similar provisions. The Series A
Preferred Stock is not redeemable prior to October 1, 2001 unless the Internal
Revenue Code is revised to reduce the percentage of the dividends received
deduction to 40% or less. In that event, Hibernia may redeem all, but not less
than all, of the outstanding shares of the Series A Preferred Stock if it
receives prior approval of the Federal Reserve Board (to the extent that
approval is then required by applicable law). The terms of the Series A
Preferred Stock provide for notice in the event of redemption and specified time
periods for any redemption the Series A Preferred Stock.
On or after October 1, 2001, shares of the Series A Preferred Stock
will be redeemable, in whole or in part, at the option of the Company. The
shares may only be redeemed, however, with prior approval of the Federal Reserve
Board (to the extent that such approval is then required by law). In the event
of such a redemption, holders of Series A Preferred Stock will be paid $50.00
per share plus accrued and unpaid dividends (whether or not declared) from the
immediately preceding dividend payment date to the date fixed for redemption.
In addition Hibernia may redeem all, but not less than all, of the
outstanding shares of Series A Preferred Stock if the holders of those shares
would be entitled to vote upon or consent to a merger or consolidation of
Hibernia. This redemption is at Hibernia's option, with the prior approval
Federal Reserve Board (to the extent it is then required by applicable law). In
addition, this redemption may only occur if all of the following conditions have
been satisfied: a) Hibernia has requested the vote or consent of the holders of
those shares prior to consummating the merger or consolidation, and such request
states that Hibernia will have the option to redeem all of the shares if it does
not obtain the requisite favorable vote or consent,(b) Hibernia has not received
the favorable vote or consent required to consummate the merger or consolidation
within sixty days of making the request, and (c) the transaction will be
consummated on the date fixed for the redemption, which date must be no more
than one year after the request is made.
Holders of Series A Preferred Stock have no right to require that
Hibernia redeem their shares.
Voting Rights. If dividends on the Series A Preferred Stock remain
unpaid for a number of dividend periods (whether or not consecutive) consisting
of at least 540 days, then the holders of the Series A Preferred Stock will be
entitled to vote for the election of two directors to be added to the Board of
Directors of the Company. For purposes of this vote, the Series A Preferred
Stock will vote separately as a class with holders of shares of any other series
of preferred stock that ranks on parity with the Series A Preferred Stock either
as to dividends or on the distribution of assets upon liquidation. These voting
rights would continue until all dividends on the Series A Preferred Stock have
been paid in full for at least one year. Upon payment in full of those
dividends, those voting rights will terminate except as expressly provided by
law, subject to re-vesting in the event of each and every subsequent default in
the payment of dividends. For purposes of these votes, each holder of Series A
Preferred Stock will have one vote for each share of stock held.
Upon termination of the right of the holders of Series A Preferred
Stock to vote for directors as discussed above, the term of office of all
directors elected by those holders will terminate immediately.
Hibernia has agreed that, as long as any shares of Series A Preferred
Stock remain outstanding it will not take certain actions without the
affirmative vote or consent of the holders of at least two thirds of the
outstanding shares of Series A Preferred Stock (voting as a class with all other
series of preferred stock ranking on parity with the Series A Preferred Stock as
to dividends or distribution of assets upon liquidation). In particular,
Hibernia has agreed that it will not authorize, create or issue any class or
series of stock that ranks prior to the Series A Preferred Stock with respect to
the payment of dividends or the distribution of assets upon liquidation.
Hibernia has also agreed that it will not increase the authorized or issued
amount of any such class or series of stock. Finally, Hibernia has agreed that
it will not amend, alter or repeal, whether by merger, consolidation or
otherwise the provisions of its Articles of Incorporation and the powers,
preferences and privileges that would materially and adversely affect any right,
preference, privilege or voting power of the Series A Preferred Stock or its
holders. An increase in the amount of the authorized preferred stock, the
creation and issuance of other series of preferred stock, and any increase in
the amount of authorized shares Series A Preferred Stock will not be deemed to
materially and adversely affect the rights, preferences, privileges or voting
powers of the Series A Preferred Stock as long as each such series ranks on
parity with or junior to the Series A Preferred Stock with respect to the
payment of dividends and the distribution of assets upon liquidation.
Directors
The Board of Directors of Hibernia is divided into three classes,
approximately equal in number, with members of each class to serve for three
years, and with one class being elected each year. Directors of Hibernia must
also be shareholders of Hibernia. Any director of Hibernia may be removed from
office with or without cause only by the affirmative vote of at least a majority
of the voting power of Hibernia present at a special meeting of the shareholders
called for that purpose. The quorum for such a meeting is a majority of the
total voting power of Hibernia present in person or by proxy at a special
meeting called for that purpose.
The Articles of Incorporation provide for indemnification and
advancement of expenses of any officer, director, employee or agent of Hibernia
for any action taken in good faith by that officer, director, employee or agent.
Indemnification in the case of actions by or in right of Hibernia shall be
limited to expenses actually and reasonably incurred in defense or settlement of
an action. The Board of Directors in its discretion may choose to provide
further indemnification to officers, directors, employees and agents of
Hibernia.
The Articles of Incorporation and By-laws authorize Hibernia to
maintain insurance covering the actions of its officers, directors, employees
and agents, and the By-laws provide for indemnification to the fullest extent
allowed under applicable law.
Fair Price Protection. The Louisiana Business Corporation Law contains certain
provisions designed to provide safeguards for shareholders when an Interested
Shareholder (as defined below) attempts to effect a Business Combination (as
defined below) with the Company. In general, a Business Combination between the
Company and an Interested Shareholder must be recommended by a majority of the
Board of Directors of the Company and either (a) approved by the affirmative
vote of at least 80% of the Voting Power (as defined below) of the Company or
(b) certain minimum price, form of consideration and procedural requirements are
satisfied. If the minimum price, form of consideration and procedural
requirements are satisfied, only the affirmative vote of a majority of the
Voting Power of the Company would be required.
An "Interested Shareholder" is defined as any person who, together with
certain persons related to him or it, is the beneficial owner of 10% or more of
the Voting Power. The term "beneficial owner" includes persons directly or
indirectly owning or having the right to acquire or vote the stock. The Company
is not aware of the existence of any person or group which would be an
Interested Shareholder of the Company or has expressed any intention to become
an Interested Shareholder of the Company.
A "Business Combination" includes the following transactions: (i) any
merger, consolidation or share exchange of the Company or any of its
subsidiaries (unless such transaction does not alter the rights of the
shareholders of the Company) with any Interested Shareholder or affiliate of an
Interested Shareholder; (ii) any sale, lease, transfer, or other disposition,
other than in the ordinary course of business, to any Interested Shareholder or
affiliate of an Interested Shareholder of any assets of the Company having a
value of 10% of the Company's book value or public float; (iii) the issuance or
transfer by the Company or any subsidiary of the Company to an Interested
Shareholder or any affiliate of an Interested Shareholder, of any equity
securities of the Company or any of its subsidiaries having an aggregate market
value of 5% or more of the total public float of the Company's stock; (iv) the
adoption of any plan of liquidation or dissolution of the Company in which an
Interested Shareholder or any affiliate of an Interested Shareholder will
receive anything other than cash; or (v) any reclassification of securities
which would have the effect, directly or indirectly, of increasing the
proportionate share of the outstanding stock of any class of the Company or any
of its subsidiaries owned by an Interested Shareholder.
"Voting Power" is defined the right vested in the shareholders of the
company, to vote in the determination of any particular question or matter
coming before meetings of shareholders.
Exceptions to Higher Voting Requirements. There is no requirement that 80% of
the Voting Power of the Company approve a Business Combination involving an
Interested Shareholder that is approved by a majority of the Board of Directors
and meets the minimum price, form of consideration and procedural requirements
described below.
(1) Minimum Price Requirement. The cash or fair market value of
the property, securities or other consideration to be received
per share by shareholders of the Company in connection with
the Business Combination must be the higher of (i) the highest
per share price, including any brokerage commission, transfer
taxes, and soliciting dealers' fees, paid by the Interested
Shareholder for any shares of stock of the same class acquired
by it within two years prior to the date that a proposed
Business Combination is publicly announced or in the
transaction in which the Interested Shareholder became an
Interested Shareholder; (ii) the market price per share of the
Company's stock on the date that the Interested Shareholder
became an Interested Shareholder; or (iii) the product of the
price set forth in clause (ii) above, multiplied by a fraction
the numerator of which is the highest per share price paid by
the Interested Shareholder in the preceding two-year period,
and the denominator of which is the market value per share on
the date that the Interested Shareholder became an Interested
Shareholder.
(2) Form of Consideration Requirements. The Business Combination
must involve the payment of cash or other consideration to the
shareholders of the Company and the consideration paid must
be, in the case of each class of stock, either cash or the
same type of consideration previously paid by the Interested
Shareholder in acquiring its shares of that class of stock.
(3) Procedural Requirements. The following procedural requirements
must be satisfied at all times after the Interested
Shareholder became an Interested Shareholder: (i) there shall
have been no failure to declare and pay at the regular date
therefor any quarterly dividends on any outstanding shares of
the Company's preferred stock; (ii) there shall have been (a)
no reduction in the annual rate of dividends paid on the
shares of the Company's Common Stock (except as necessary to
reflect any stock split or stock dividend with respect to the
Company's Common Stock), and (b) an increase in such annual
rate of dividends as necessary to prevent any such reduction
in the event of any reclassification of the Company's Common
Stock; and (iii) such Interested Shareholder shall not have
become the beneficial owner of any additional shares of stock
of the Company except as part of the transaction which
resulted in such Interested Shareholder becoming an Interested
Shareholder.
Considerations in Change of Control
The LBCL authorizes the Board of Directors, when considering any
proposal to acquire control of Hibernia, to take into account, among other
enumerated factors and any other factors the Board of Directors deems relevant,
the interests of Hibernia's employees, creditors and the communities in which
Hibernia conducts its business, as well as purely financial interests of
Hibernia's shareholders.
Amendment of Articles of Incorporation
The affirmative vote of the holders of at least a majority of the
voting power present at a meeting called for that purpose is required to amend
any provision of the Articles of Hibernia.
Amendment of By-Laws
The By-Laws may be amended or repealed by the affirmative vote of a
majority of the Board of Directors or by the affirmative vote of at least a
majority of the voting power present at a meeting of the shareholders of
Hibernia.
Shareholders' Meetings
Shareholders holding not less than twenty percent of its outstanding
Common Stock are permitted to require Hibernia to call a meeting of its
shareholders. Shareholders' meetings may also be called by the President,
Chairman of the Board or the Secretary of the Company.
Louisiana Control Share Acquisition Statute
The LBCL Control Share Acquisition Statute provides that any shares
acquired by a person or group (an "Acquiror") in an acquisition that causes such
person or group to have the power to direct the exercise of voting power in the
election of directors in excess of the 20%, 33 1/3% or 50% thresholds shall have
only such voting power as shall be accorded by the holders of all shares other
than Interested Shares (as defined below) at a meeting called for the purpose of
considering the voting power to be accorded to shares held by the Acquiror.
Interested Shares include all shares as to which the Acquiror, any officer of
Hibernia and any director of Hibernia who is also an employee of Hibernia may
exercise or direct the exercise of voting power. If a meeting of shareholders is
held to consider the voting rights to be accorded to an Acquiror and the
shareholders do not vote to accord voting rights to such shares, Hibernia may
have the right to redeem the shares held by the Acquiror for their fair market
value.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HIBERNIA CORPORATION
(Registrant)
Date: December 4, 1998 By: /s/ Patricia C. Meringer
Patricia C. Meringer
Senior Vice President
and Secretary
