As filed with the Securities and Exchange Commission on June 18, 1997
Registration Nos. 333-27019 and 333-27019-01
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IMPERIAL
IMPERIAL BANCORP CAPITAL TRUST I
(Exact name of registrant as specified (Exact name of registrant as specified
in its charter) in its Trust Agreement)
California Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
6712
(Primary standard industrial (Primary standard industrial
classification code number) classification code number)
95-2575576 95-4636734
(l.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
9920 SOUTH LA CIENEGA BOULEVARD C/O IMPERIAL BANCORP
INGLEWOOD, CALIFORNIA 90301 9920 SOUTH LA CIENEGA BOULEVARD
(310) 417-5600 INGLEWOOD, CALIFORNIA 90301
(310) 417-5600
(Address, including zip code, and (Address, including zip code, and
telephone number, including area telephone number, including area
code, registrant's principal executive code, registrant's principal executive
offices) offices)
Richard M. Baker
Senior Vice President, General Counsel and Secretary
Imperial Bancorp
9920 South La Cienega Boulevard
Inglewood, California 90301
(310) 417-5600
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Dennis J. Block, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES
TO THE PUBLIC: As soon as practicable after the effective date of this
Registration Statement.
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. [__]
<PAGE>
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE OR UNTIL THE
REGISTRANTS 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 THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
2
<PAGE>
(continued from cover page)
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED JUNE 18, 1997
PROSPECTUS
$75,000,000
IMPERIAL CAPITAL TRUST I
OFFER TO EXCHANGE ITS 9.98% SERIES B CAPITAL SECURITIES
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING 9.98% SERIES A
CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT DESCRIBED HEREIN, BY
IMPERIAL BANCORP
The Exchange Offer and Withdrawal
Rights will expire at 5:00 p.m., New
York City time, on _____ __, 1997,
unless extended.
Imperial Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "ISSUER" or the "TRUST"),
hereby offers, upon the terms and subject to the conditions set forth in this
Prospectus (as the same may be amended or supplemented from time to time, the
"PROSPECTUS") and in the accompanying Letter of Transmittal (which together
constitute the "EXCHANGE OFFER"), to exchange up to $75,000,000 aggregate
Liquidation Amount (as defined herein) of its 9.98% Series B Capital Securities
(Liquidation Amount $1,000 per Capital Security) (the "NEW CAPITAL SECURITIES"),
which have been registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), pursuant to a Registration Statement (as defined herein) of
which this Prospectus constitutes a part, for a like Liquidation Amount of its
outstanding 9.98% Series A Capital Securities (Liquidation Amount $1,000 per
Capital Security) (the "OLD CAPITAL SECURITIES"), of which $75,000,000 aggregate
Liquidation Amount is outstanding. Pursuant to the Exchange Offer, Imperial
Bancorp, a California corporation (the "COMPANY"), is also exchanging (i) its
guarantee with respect to the payment of Distributions (as defined herein) and
other payments on liquidation or redemption of the Old Capital Securities (the
"OLD GUARANTEE") for a like guarantee with respect to the New Capital Securities
(the "NEW GUARANTEE"), and (ii) all of its outstanding 9.98% Series A Junior
Subordinated Deferrable Interest Debentures due December 31, 2026 (the "OLD
JUNIOR SUBORDINATED DEBENTURES"), of which $77,320,000 aggregate principal
amount is outstanding, for a like aggregate principal amount of its 9.98% Series
B Junior Subordinated Deferrable Interest Debentures due December 31, 2026 (the
"NEW JUNIOR SUBORDINATED DEBENTURES"), which New Guarantee and New Junior
Subordinated Debentures also have been registered under the Securities Act. The
Old Capital Securities, the Old Guarantee and the Old Junior Subordinated
Debentures are collectively referred to herein as the "OLD SECURITIES" and
<PAGE>
(continued from cover page)
the New Capital Securities, the New Guarantee and the New Junior Subordinated
Debentures are collectively referred to herein as the "NEW SECURITIES."
The terms of the New Securities are identical in all
material respects to the respective terms of the Old Securities, except that (i)
the New Securities have been registered under the Securities Act and therefore
will not be subject to certain restrictions on transfer applicable to the Old
Securities, (ii) the New Capital Securities will not provide for any increase in
the Distribution rate thereon, and (iii) the New Junior Subordinated Debentures
will not provide for any increase in the interest rate thereon. See "Description
of Capital Securities" and "Description of Junior Subordinated Debentures." The
New Capital Securities are being offered for exchange in order to satisfy
certain obligations of the Company and the Issuer under the Registration Rights
Agreement, dated as of April 23, 1997 (the "REGISTRATION RIGHTS AGREEMENT"),
among the Company, the Issuer and the Initial Purchasers (as defined herein) of
the Old Capital Securities. If the Exchange Offer is consummated, any Old
Capital Securities which remain outstanding after consummation of the Exchange
Offer and the New Capital Securities issued in the Exchange Offer will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the Declaration (as defined
herein).
SEE "RISK FACTORS" BEGINNING ON PAGE 11 FOR CERTAIN
INFORMATION RELEVANT TO AN INVESTMENT IN THE NEW CAPITAL SECURITIES, INCLUDING
THE PERIOD AND CIRCUMSTANCES DURING AND UNDER WHICH PAYMENT OF DISTRIBUTIONS ON
THE NEW JUNIOR SUBORDINATED DEBENTURES AND THE NEW CAPITAL SECURITIES MAY BE
DEFERRED AND CERTAIN RELATED UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is________ __, 1997.
(ii)
<PAGE>
(continued from cover page)
The Old Capital Securities and the New Capital Securities
are referred to as the "CAPITAL SECURITIES." The Old Capital Securities
represent, and when issued the New Capital Securities will represent, undivided
preferred beneficial interests in the assets of the Issuer. The Company owns all
of the beneficial interests represented by common securities of the Issuer (the
"COMMON SECURITIES" and, collectively with the Capital Securities, the "TRUST
SECURITIES"). The Issuer exists for the sole purpose of issuing the Trust
Securities and investing the proceeds thereof in the Junior Subordinated
Debentures (as defined herein) and engaging in certain other limited activities
described herein. The Junior Subordinated Debentures will mature on December 31,
2026 (the "STATED MATURITY DATE"). The Capital Securities will have a preference
over the Common Securities under certain circumstances with respect to
Distributions and amounts payable on liquidation, redemption or otherwise over
the Common Securities. See "Description of Capital Securities."
As used herein, (i) the "INDENTURE" means the Indenture,
dated as of April 23, 1997, relating to the Junior Subordinated Debentures, as
amended and supplemented from time to time, between the Company and The Chase
Manhattan Bank, as trustee (the "DEBENTURE TRUSTEE"), (ii) the "DECLARATION"
means the Amended and Restated Declaration of Trust, dated as of April 23, 1997,
relating to the Issuer among the Company, as Sponsor, The Chase Manhattan Bank,
as Property Trustee (the "PROPERTY TRUSTEE"), Chase Manhattan Bank Delaware, as
Delaware Trustee (the "DELAWARE TRUSTEE") and the administrative trustees named
therein (collectively, with the Property Trustee and the Delaware Trustee, the
"ISSUER TRUSTEES") and the holders from time to time of the Trust Securities,
(iii) the "GUARANTEE AGREEMENTS" mean the Guarantee Agreement, dated as of April
23, 1997, between the Company and The Chase Manhattan Bank, as trustee (the
"GUARANTEE TRUSTEE"), and the Series B Guarantee Agreement to be entered into
between the Company and the Guarantee Trustee in connection with the
consummation of the Exchange Offer, in both cases providing a guarantee, on the
terms and conditions described herein, for the benefit of holders of the Capital
Securities and (iv) the "COMMON GUARANTEE" means the Guarantee Agreement, dated
as of April 23, 1997, relating to the Common Securities by the Company. In
addition, as the context may require, unless expressly stated otherwise, (i) the
"JUNIOR SUBORDINATED DEBENTURES" means the Old Junior Subordinated Debentures
and the New Junior Subordinated Debentures and (ii) the "GUARANTEE" means the
Old Guarantee and the New Guarantee.
Except as described herein, the New Capital Securities will
be represented by a global certificate in fully registered form, deposited with
a custodian for and registered in the name of Cede & Co., as nominee for The
Depository Trust Company ("DTC"). Beneficial interests in the New Capital
Securities will be shown on, and transfers thereof will be effected through,
records maintained by DTC and its participants. The New Capital Securities will
be issued, and may be transferred, only in blocks having a Liquidation Amount of
not less than $100,000 (100 New Capital Securities). See "Description of Capital
Securities-Form, Denomination, Book-Entry Procedures and Transfer."
Holders of the Capital Securities are entitled to receive
cumulative cash distributions, arising from the payment of interest on the
Junior Subordinated Debentures, accumulating from April 23, 1997, the date of
original issuance of the Old Capital Securities, and payable semi-annually in
(iii)
<PAGE>
(continued from cover page)
arrears on June 30 and December 31 of each year, commencing June 30, 1997
("DISTRIBUTIONS"), at the annual rate of 9.98% of the Liquidation Amount of
$1,000 per Capital Security (the "LIQUIDATION AMOUNT"). So long as no Debenture
Event of Default (as defined herein) has occurred and is continuing, the Company
will have the right to defer payments of interest on the Junior Subordinated
Debentures at any time and from time to time for a period not exceeding 10
consecutive semi-annual periods with respect to each deferral period (each, an
"EXTENSION PERIOD"), provided that no Extension Period may end on a day other
than an Interest Payment Date (as defined herein) or extend beyond the Stated
Maturity Date. Upon the termination of any such Extension Period and the payment
of all amounts then due, the Company may elect to begin a new Extension Period,
subject to the requirements set forth herein. If and for so long as interest
payments on the Junior Subordinated Debentures are so deferred, Distributions on
the Trust Securities will also be deferred and the Company will not be
permitted, subject to certain exceptions described herein, to declare or pay any
cash distributions with respect to the Company's capital stock (which includes
common and preferred stock) or to make any payment with respect to debt
securities of the Company that rank pari passu with or junior to the Junior
Subordinated Debentures. During an Extension Period, interest on the Junior
Subordinated Debentures will continue to accrue (and the amount of Distributions
to which holders of the Trust Securities are entitled will continue to
accumulate) at the rate of 9.98% per annum, compounded semi-annually, and
holders of Trust Securities will be required to accrue original issue discount
income for United States federal income tax purposes prior to receipt of cash
payments attributable to such income. See "Description of Junior Subordinated
Debentures -- Option to Extend Interest Payment Date" and "Certain Federal
Income Tax Considerations -- Interest, Original Issue Discount, Premium and
Market Discount."
The Company has, through the Guarantee, the Common
Guarantee, the Declaration, the Junior Subordinated Debentures and the
Indenture, taken together, fully, irrevocably and unconditionally guaranteed all
of the Trust's obligations under the Trust Securities. See "Relationship Among
the Capital Securities, the Junior Subordinated Debentures and the Guarantee --
Full and Unconditional Guarantee." The Guarantee and the Common Guarantee
guarantee payments of Distributions and payments on liquidation or redemption of
the Trust Securities, but in each case only to the extent that the Trust holds
funds on hand legally available therefor and has failed to make such payments,
as described herein. See "Description of the Guarantee." If the Company fails to
make a required payment on the Junior Subordinated Debentures, the Trust will
not have sufficient funds to make the related payments, including Distributions,
on the Trust Securities. The Guarantee and the Common Guarantee will not cover
any such payment when the Trust does not have sufficient funds on hand legally
available therefor. In such event, a holder of Capital Securities may institute
a legal proceeding directly against the Company to enforce payment to such
holder of accrued but unpaid interest on Junior Subordinated Debentures with a
principal amount equal to the Liquidation Amount of the Capital Securities held
by such holder. See "Description of Junior Subordinated Debentures --
Enforcement of Certain Rights by Holders of Capital Securities." The obligations
of the Company under the Guarantee, the Common Guarantee and the Junior
Subordinated Debentures are unsecured
(iv)
<PAGE>
(continued from cover page)
and subordinate and rank junior in right of payment to all Senior Indebtedness
(as defined herein) of the Company to the extent and in the manner set forth in
the Indenture and in the Guarantee and the Common Guarantee.
The Trust Securities are subject to mandatory redemption in
a Like Amount (as defined herein), (i) in whole but not in part, on the Stated
Maturity Date upon repayment of the Junior Subordinated Debentures at a
redemption price equal to the principal amount of, plus accrued and unpaid
interest on, the Junior Subordinated Debentures (the "MATURITY REDEMPTION
PRICE"), (ii) in whole but not in part, at any time before June 30, 2007 (the
"INITIAL OPTIONAL PREPAYMENT DATE"), contemporaneously with the optional
prepayment of the Junior Subordinated Debentures, upon the occurrence and
continuation of a Special Event (as defined herein) at a redemption price equal
to the Special Event Prepayment Price (as defined herein) (the "SPECIAL EVENT
REDEMPTION PRICE"), and (iii) in whole or in part, on or after the Initial
Optional Prepayment Date, contemporaneously with the optional prepayment by the
Company of the Junior Subordinated Debentures, at a redemption price equal to
the Optional Prepayment Price (as defined herein) (the "OPTIONAL REDEMPTION
PRICE"). Any of the Maturity Redemption Price, the Special Event Redemption
Price and the Optional Redemption Price may be referred to herein as the
"REDEMPTION PRICE." See "Description of Capital Securities -- Redemption."
Subject to the Company having received prior approval of
the Board of Governors of the Federal Reserve System (the "FEDERAL RESERVE"), if
then required under applicable capital guidelines or policies of the Federal
Reserve, the Junior Subordinated Debentures will be prepayable prior to the
Stated Maturity Date at the option of the Company (i) on or after the Initial
Optional Prepayment Date, in whole or in part, at a prepayment price (the
"OPTIONAL PREPAYMENT PRICE") equal to 105.113% of the principal amount thereof
on the Initial Optional Prepayment Date, declining ratably on each June 30
thereafter to 100% on or after June 30, 2017, plus accrued and unpaid interest
thereon to the date of prepayment, or (ii) at any time before the Initial
Optional Prepayment Date, in whole but not in part, upon the occurrence and
continuation of a Special Event, at a prepayment price (the "SPECIAL EVENT
PREPAYMENT PRICE") equal to the greater of (a) 100% of the principal amount
thereof or (b) the sum, as determined by a Quotation Agent (as defined herein),
of the present values of the principal amount and premium payable as part of the
Optional Prepayment Price with respect to an optional redemption of such Junior
Subordinated Debentures on the Initial Optional Prepayment Date, together with
scheduled payments of interest from the prepayment date to the Initial Optional
Prepayment Date, in each case discounted to the prepayment date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate (as defined herein) plus, in either case, accrued and
unpaid interest thereon to the date of prepayment. Either of the Optional
Prepayment Price or the Special Event Prepayment Price may be referred to herein
as the "PREPAYMENT PRICE." See "Description of Junior Subordinated Debentures --
Optional Prepayment" and "-- Special Event Prepayment."
The Company, as the holder of the outstanding Common
Securities, has the right at any time to dissolve the Trust and, after
satisfaction of liabilities to creditors of the Trust as required by applicable
law, cause a Like Amount of the Junior Subordinated Debentures to be distributed
to the
(v)
<PAGE>
(continued from cover page)
holders of the Trust Securities in liquidation of the Trust, subject to (i) the
Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of the Capital Securities
and (ii) the prior approval of the Federal Reserve, if then required under
applicable capital guidelines or policies of the Federal Reserve. Unless the
Junior Subordinated Debentures are distributed to the holders of the Trust
Securities, in the event of a liquidation of the Trust as described herein,
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, the holders of the Capital Securities generally will be entitled
to receive a Liquidation Amount of $1,000 per Capital Security plus accumulated
and unpaid Distributions thereon to the date of payment. See "Description of
Capital Securities -- Liquidation of the Trust and Distribution of Junior
Subordinated Debentures" and "Certain Federal Income Tax Considerations --
Receipt of Junior Subordinated Debentures Upon Liquidation of the Trust."
Based on interpretations by the staff of the Commission, as
set forth in several no-action letters to third parties, and subject to the
immediately following sentence, the Company and the Trust believe that New
Securities issued pursuant to the Exchange Offer in exchange for Old Securities
may be offered for resale, resold and otherwise transferred by a holder thereof
without further compliance with the registration and prospectus delivery
requirements of the Securities Act, provided that such New Securities are
acquired in the ordinary course of such holder's business and that such holder
is not participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the Securities Act) of
such New Securities. However, any holder of Old Capital Securities who is an
"affiliate" of either the Company or the Trust, a broker-dealer that acquires
the Old Capital Securities in a transaction other than as a part of its
market-making or other trading activities or other holder who intends to
participate in the Exchange Offer for the purpose of distributing New Capital
Securities (i) will not be able to rely on the interpretations by the staff of
the Commission set forth in the above-mentioned interpretive letters, (ii) will
not be able to tender such Old Capital Securities in the Exchange Offer and
(iii) must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any sale or other transfer of such Old
Capital Securities unless such sale is made pursuant to an exemption from such
requirements. Any broker-dealer who holds Old Securities acquired for its own
account as a result of market-making activities or other trading activities, and
who receives New Securities in exchange for such Old Securities pursuant to the
Exchange Offer (an "Exchanging Dealer"), may be a statutory underwriter and must
deliver a prospectus meeting the requirements of the Securities Act, which may
be the prospectus prepared for the Exchange Offer so long as it contains a plan
of distribution with respect to such resale transactions, in connection with any
resales of such New Securities. Neither the Company nor the Trust sought its own
no-action letter and there can be no assurance that the staff of the Commission
would make a similar determination with respect to the Exchange Offer as it has
in such no-action letters to third parties.
Each holder of Old Capital Securities (other than a
broker-dealer) who wishes to exchange Old Capital Securities for New Capital
Securities in the Exchange Offer will be required to represent that (i) it is
not an "affiliate" of the Company or the Trust, (ii) any New Capital Securities
to be received by it are being acquired in the ordinary course of its business
and (iii) it has no arrangement or understanding with any person to participate
in a distribution (within the meaning of the
(vi)
<PAGE>
(continued from cover page)
Securities Act) of such New Capital Securities. The Letter of Transmittal
accompanying this Prospectus (the "LETTER OF TRANSMITTAL") contains the
foregoing representations. In addition, the Company and the Trust may require
such holder, as a condition to such holder's eligibility to participate in the
Exchange Offer, to furnish to the Company and the Trust (or an agent thereof) in
writing information as to the number of "beneficial owners" (within the meaning
of Rule 13d-3 under the Exchange Act) on behalf of whom such holder holds the
Old Capital Securities to be exchanged in the Exchange Offer. Each Exchanging
Dealer will be deemed to have acknowledged by execution of the Letter of
Transmittal or delivery of an Agent's Message (as defined herein) that it
acquired the Old Capital Securities for its own account as the result of
market-making activities or other trading activities and must agree that it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Capital Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, an
Exchanging Dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. Based on the position taken by the staff of
the Commission in the no-action letters referred to above, the Company and the
Trust believe that Exchanging Dealers may fulfill their prospectus delivery
requirements with respect to the New Capital Securities received upon exchange
of such Old Capital Securities (other than Old Capital Securities which
represent an unsold allotment from the original sale of the Old Capital
Securities) with a prospectus meeting the requirements of the Securities Act,
which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such New Capital Securities. Subject to certain provisions set forth in the
Registration Rights Agreement and to the limitations set out herein, the Company
and the Trust have agreed that this Prospectus, as it may be amended or
supplemented from time to time, may be used by an Exchanging Dealer in
connection with resales of such New Capital Securities for a period ending 90
days after the Expiration Date (as defined herein), or longer, if required by
the Registration Rights Agreement. See "Plan of Distribution." Any person,
including any Exchanging Dealer, who is an "affiliate" of the Company or the
Trust may not rely on such no-action letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
Each broker-dealer that receives New Capital Securities for
its own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such New Capital
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Capital Securities received in
exchange for Old Capital Securities where such Old Capital Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company and the Trust have agreed that, starting on the
date on which the Exchange Offer is consummated and ending on the close of
business 90 days after such date, they will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
In that regard, each Exchanging Dealer who surrenders Old
Capital Securities pursuant to the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal or by delivery of an Agent's Message
in lieu thereof, that, upon receipt of notice from the Company or the
(vii)
<PAGE>
(continued from cover page)
Trust of the occurrence of any event or the discovery of any fact which makes
any statement contained or incorporated by reference in this Prospectus untrue
in any material respect or which causes this Prospectus to omit to state a
material fact necessary in order to make the statements contained or
incorporated by reference herein, in the light of the circumstances under which
they were made, not misleading, or of the occurrence of certain other events
specified in the Registration Rights Agreement, such Exchanging Dealer will
suspend the sale of New Securities pursuant to this Prospectus until the Company
or the Trust has amended or supplemented this Prospectus to correct such
misstatement or omission and has furnished copies of the amended or supplemented
Prospectus to such Exchanging Dealer, or the Company or the Trust has given
notice that the sale of the New Securities may be resumed, as the case may be.
Prior to the Exchange Offer, there has been only a limited
secondary market and no public market for the Old Capital Securities. The New
Capital Securities will be a new issue of securities for which there currently
is no market. The New Capital Securities will not be listed on a securities
exchange. Although Keefe, Bruyette & Woods, Inc., Lehman Brothers Inc. and UBS
Securities LLC, the initial purchasers of the Old Capital Securities (the
"INITIAL PURCHASERS"), informed the Company and the Trust in connection with the
offering of the Old Capital Securities that they each intended to make a market
in the Old Capital Securities, they are not obligated to make a market in the
Old Capital Securities or the New Capital Securities, and any such market-making
may be discontinued at any time without notice in the sole discretion of the
Initial Purchasers. Accordingly, there can be no assurance as to the development
or liquidity of any market for the New Capital Securities.
Any Old Capital Securities not tendered and accepted in the
Exchange Offer will remain outstanding and will be entitled to all the same
rights and will be subject to the same limitations applicable thereto under the
Declaration (except for those rights which terminate upon consummation of the
Exchange Offer). Following consummation of the Exchange Offer, the holders of
Old Capital Securities will continue to be subject to all of the existing
restrictions upon transfer thereof and neither the Company nor the Issuer will
have any further obligation to such holders (other than under certain limited
circumstances) to provide for registration under the Securities Act of the Old
Capital Securities held by them. To the extent that Old Capital Securities are
tendered and accepted in the Exchange Offer, a holder's ability to sell
untendered Old Capital Securities could be adversely affected. See "Risk
Factors-Consequences of Failure to Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE
URGED TO READ THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL
CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR OLD CAPITAL SECURITIES
PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or
prior to 5:00 p.m., New York City time, on _______ __, 1997 (such time on such
date being hereinafter called the "EXPIRATION DATE"), unless the Exchange Offer
is extended by the Company and the Issuer (in which case the term "EXPIRATION
DATE" shall mean the latest date and time to which the Exchange Offer is
extended).
(viii)
<PAGE>
(continued from cover page)
Tenders of Old Capital Securities may be withdrawn at any time on or prior to
the Expiration Date. The Exchange Offer is not conditioned upon any minimum
Liquidation Amount of Old Capital Securities being tendered for exchange.
However, the Exchange Offer is subject to certain events and conditions which
may be waived by the Company or the Issuer and to the terms and provisions of
the Registration Rights Agreement. Old Capital Securities may be tendered in
whole or in part having a Liquidation Amount of not less than $100,000 (100 Old
Capital Securities) and or any integral multiple of $1,000 Liquidation Amount
(one Old Capital Security) in excess thereof. The Company has agreed to pay all
expenses of the Exchange Offer, except as otherwise specified herein. See "The
Exchange Offer- Fees and Expenses." Each New Capital Security will pay
cumulative Distributions from the most recent Distribution Date (as defined
herein) on the Old Capital Securities surrendered in exchange for such New
Capital Securities or, if no Distributions have been paid on such Old Capital
Securities, from April 23, 1997. Holders of the Old Capital Securities whose Old
Capital Securities are accepted for exchange will not receive accumulated
Distributions on such Old Capital Securities for any period from and after the
last Distribution Date on such Old Capital Securities prior to the original
issue date of the New Capital Securities or, if no such Distributions have been
paid, will not receive any accumulated Distributions on such Old Capital
Securities, and will be deemed to have waived the right to receive any
Distributions on such Old Capital Securities accumulated from and after such
Distribution Date or, if no such interest has been paid or duly provided for,
from and after April 23, 1997.
Neither the Company nor the Issuer will receive any
proceeds from the issuance of the New Capital Securities offered hereby. No
dealer-manager is being used in connection with this Exchange Offer. See "Use of
Proceeds" and "Plan of Distribution."
THE NEW CAPITAL SECURITIES WILL BE ISSUED, AND CAPITAL
SECURITIES MAY BE TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT
LESS THAN $100,000. ANY TRANSFER, SALE OR OTHER DISPOSITION OF CAPITAL
SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE,
INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL
SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER
IN SUCH CAPITAL SECURITIES.
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH, A "PLAN"), NO ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN
THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY
PLAN, MAY ACQUIRE OR HOLD THE CAPITAL SECURITIES OR ANY INTEREST THEREIN, UNLESS
SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23,
95-60, 91-38, 90-1
(ix)
<PAGE>
(continued from cover page)
OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF
THE CAPITAL SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT EITHER (A) IS NOT A PLAN
OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH
PURCHASE OR HOLDING.
(x)
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and in
accordance therewith, files reports, proxy statements and other information with
the Commission. Reports, proxy statements and other information concerning the
Company can be inspected and copied at prescribed rates at the Commission's
Public Reference Room, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, as well as the following Regional Offices of the Commission: 7 World
Trade Center, 13th Floor, New York, New York 10048; and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained by
mail from the Commission's Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. If available, such reports and
other information may also be accessed through the Commission's electronic data
gathering, analysis and retrieval system ("EDGAR") via electronic means,
including the Commission's web site on the Internet (http://www.sec.gov). Such
reports, proxy statements and other information may also be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
The Company and the Issuer have filed with the Commission a
Registration Statement on Form S-4 (together with all amendments and exhibits
thereto, the "REGISTRATION STATEMENT") under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement and the exhibits and the consolidated financial
statements, notes and schedules filed as part thereof or incorporated by
reference therein, which may be inspected at the public reference facilities of
the Commission, at the addresses set forth above. Statements made in this
Prospectus concerning the contents of any documents referred to herein are not
necessarily complete, and in each instance are qualified in all respects by
reference to the copy of such document filed as an exhibit to the Registration
Statement.
No separate financial statements of the Issuer have been
included herein. Neither the Company nor the Issuer consider that such financial
statements would be material to holders of the Capital Securities because (i)
all of the voting securities of the Issuer are owned by the Company, a reporting
company under the Exchange Act, (ii) the Issuer has no independent operations,
but exists for the sole purpose of issuing the Trust Securities, holding as
trust assets the Junior Subordinated Debentures and certain other limited
purposes, including engaging in the Exchange Offer, and (iii) the Company's
obligations described herein to provide certain indemnities in respect of, and
be responsible for, certain costs, expenses, debts and liabilities of the Issuer
under the Indenture and any supplemental indenture thereto and pursuant to the
Declaration, the Guarantee and the Junior Subordinated Debentures, taken
together, constitute a full and unconditional guarantee of payments due on the
Capital Securities. See "Description of Junior Subordinated Debentures" and
"Description of the Guarantee." In addition, the Company does not expect that
the Issuer will file reports, proxy statements and other information under the
Exchange Act with the Commission.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company
pursuant to Sections 13 and 14 of the Exchange Act are incorporated herein by
reference:
(1) Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(2) Proxy Statement dated April 4, 1997 (other than the
information included therein under the captions "Report of
the Compensation Committee" and "Shareholder Return
Performance Presentation"); and
(3) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the New Capital Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in
this Prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus or any supplement thereto to the extent that a statement
contained herein or therein (or in any subsequently filed document that also is
or is deemed to be incorporated by reference herein or therein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this
Prospectus, including the documents incorporated or deemed to be incorporated
herein by reference, as the same may be amended, supplemented or otherwise
modified from time to time. Statements contained in this Prospectus as to the
contents of any contract or other document referred to herein do not purport to
be complete, and where reference is made to the particular provisions of such
contract or other document, such provisions are qualified in all respects by
reference to all of the provisions of such contract or other document.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY
OF THIS PROSPECTUS HAS BEEN DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN
OR MAY BE INCORPORATED BY REFERENCE HEREIN (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE IN
SUCH DOCUMENTS). REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO IMPERIAL
BANCORP, 9920 SOUTH LA CIENEGA BOULEVARD, INGLEWOOD, CALIFORNIA 90301.
ATTENTION: GENERAL COUNSEL, TELEPHONE (310) 417-5600.
2
<PAGE>
SUMMARY
The following summary is qualified in its entirety by the more
detailed information appearing elsewhere in this Prospectus.
IMPERIAL BANCORP
GENERAL
Imperial Bancorp (the "Company") is a registered bank holding company
whose principal operating subsidiary is Imperial Bank, a California chartered
commercial bank (the "BANK"). The Bank, the eighth largest commercial bank in
California based on deposits as of December 31, 1996, is engaged in general
commercial banking through its 11 branches in California and maintains three
additional loan production offices in Boston, Massachusetts, Austin, Texas and
Phoenix, Arizona. As of March 31, 1997, the Company had total assets of $3.7
billion and deposits of $3.3 billion and, for the quarter ended March 31, 1997,
the Company had net income of $8.0 million.
The Company offers a wide range of financial services tailored to
corporate customers, entrepreneurs and professionals. The Bank's business
strategy has been to develop specialty financial products and services for
industries such as health care, emerging growth technology, entertainment,
manufacturing and distribution, garment, and title and escrow, in addition to
merchant card transaction processing, trust and custodial services. The Company
competes for the banking business of middle market companies (between $10
million and $150 million in annual sales) through the development of special
products and services, including employing lending and deposit specialists in
the targeted industry groups.
For additional information regarding the Company, see "Available
Information," "Incorporation of Certain Documents by Reference," "Imperial
Bancorp," and "Selected Consolidated Financial Data of Imperial Bancorp." See
also the discussion herein under "Imperial Bancorp -- The Spin Off Transactions"
and "Pro Forma Financial Information" regarding the Company's possible spin off
of its specialty lending and finance businesses that focus on motion picture and
television production, as well as certain other operations.
IMPERIAL CAPITAL TRUST I
The Trust is a statutory business trust created under Delaware law
pursuant to (i) a Declaration executed by the Company, as Sponsor, The Chase
Manhattan Bank, as Property Trustee and Chase Manhattan Bank Delaware, as
Delaware Trustee, and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on April 8, 1997. The Trust's affairs are conducted
by the Issuer Trustees: the Property Trustee, the Delaware Trustee and the two
individual Administrative Trustees who are employees or officers of or
affiliated with the Company. The Trust exists for the exclusive purposes of (i)
issuing and selling the Trust Securities, (ii) using the proceeds from the sale
of the Old Capital Securities and the Common Securities to acquire the Junior
Subordinated Debentures and (iii) engaging in only those other activities
necessary, advisable or incidental thereto, including engaging in the Exchange
Offer. Accordingly, the Old Junior Subordinated Debentures are, and the New
Junior
3
<PAGE>
Subordinated Debentures will be, the sole assets of the Trust, and payments
under the Junior Subordinated Debentures will be the sole revenue of the Trust.
All of the Common Securities are owned by the Company.
THE EXCHANGE OFFER
The Exchange Offer................... Up to $75,000,000 aggregate liquidation
amount of New Capital Securities are
being offered in exchange for a like
aggregate liquidation amount of Old
Capital Securities. Old Capital
Securities may be tendered for exchange
in whole or in part in a liquidation
amount of $100,000 (100 Old Capital
Securities) or any integral multiple of
$1,000 in excess thereof provided that
if any Old Capital Securities are
tendered in exchange for part, the
untendered liquidation amount must be
$100,000 or any integral multiple of
$1,000 in excess thereof. The Company
and the Trust are making the Exchange
Offer in order to satisfy their
obligations under the Registration
Rights Agreement relating to the Old
Capital Securities. For a description of
the procedures for tendering Old Capital
Securities, see "The Exchange Offer--
Procedures for Tendering Old Capital
Securities."
Expiration Date...................... The Expiration Date of the Exchange
Offer will be 5:00 p.m., New York City
time, on ___________, 1997, unless the
Exchange Offer is extended by the
Company and the Trust. See "The Exchange
Offer -- Expiration Date; Extensions;
Amendments."
Conditions to
Exchange Offer....................... The Exchange Offer is subject to certain
conditions, including the absence of a
Tax Event (as defined herein), which may
be waived by the Company and the Trust
in their sole discretion. The Exchange
Offer is not conditioned upon any
minimum liquidation amount of Old
Capital Securities being tendered. See
"The Exchange Offer-- Conditions to the
Exchange Offer."
The Company and the Trust reserve the
right in their sole discretion, subject
to applicable law, at any time and from
time to time, (i) to delay the
acceptance of the Old Capital Securities
for exchange, (ii) to terminate the
Exchange Offer if certain specified
conditions have not been satisfied,
(iii) to extend the Expiration Date of
the Exchange Offer and retain all Old
Capital Securities
4
<PAGE>
tendered pursuant to the Exchange Offer,
subject, however, to the right of
holders of Old Capital Securities to
withdraw their tendered Old Capital
Securities, or (iv) to waive any
condition or otherwise amend the terms
of the Exchange Offer in any respect.
See "The Exchange Offer -- Expiration
Date; Extensions; Amendments."
Withdrawal Rights...................... Tenders of Old Capital Securities may be
withdrawn at any time on or prior to the
Expiration Date by delivering a written
notice of such withdrawal to The Chase
Manhattan Bank, as Exchange Agent (the
"EXCHANGE AGENT"), in conformity with
certain procedures set forth below under
"The Exchange Offer-- Withdrawal
Rights."
Procedures for Tendering
Old Capital Securities................. Tendering holders of Old Capital
Securities must complete and sign a
Letter of Transmittal in accordance with
the instructions contained therein and
forward the same by mail, facsimile or
hand delivery, together with any other
required documents (including the Old
Capital Securities to be tendered) to
the Exchange Agent, or must comply with
the specified procedures for guaranteed
delivery of Letters of Transmittal and
Old Capital Securities. Certain brokers,
dealers, commercial banks, trust
companies and other nominees may also
effect tenders by book-entry transfer,
including an Agent's Message in lieu of
the Letter of Transmittal. Holders of
Old Capital Securities registered in the
name of a broker, dealer, commercial
bank, trust company or other nominee are
urged to contact such person promptly if
they wish to tender Old Capital
Securities pursuant to the Exchange
Offer. See "The Exchange Offer--
Procedures for Tendering Old Capital
Securities."
Letters of Transmittal and certificates
representing Old Capital Securities
should not be sent to the Company or the
Trust. Such documents should only be
sent to the Exchange Agent. Questions
regarding how to tender and requests for
information should be directed to the
Exchange Agent. See "The Exchange
Offer-- Exchange Agent."
5
<PAGE>
Resales of New
Capital Securities................... Based on interpretations by the staff of
the Commission as set forth in no-action
letters issued to third parties, the
Company and the Trust believe that the
New Securities issued pursuant to the
Exchange Offer may be offered for
resale, resold or otherwise transferred
by holders thereof (other than any
holder that is an "affiliate" of the
Company or the Trust as defined under
Rule 405 of the Securities Act) without
compliance with the registration and
prospectus delivery provisions of the
Securities Act; provided that such New
Securities are acquired in the ordinary
course of such holders' business and
such holders are not engaged in, and do
not intend to engage in, a distribution
of such New Securities and have no
arrangement or understanding with any
person to participate in the
distribution of such New Securities.
However, the staff of the Commission has
not considered the Exchange Offer in the
context of a no-action letter, and there
can be no assurance that the staff of
the Commission would make a similar
determination with respect to the
Exchange Offer as in such other
circumstances. By tendering the Old
Capital Securities in exchange for New
Capital Securities, each holder, other
than a broker-dealer, will represent to
the Company and the Trust that: (i) it
is not an affiliate of the Company or
the Trust (as defined under Rule 405 of
the Securities Act); (ii) any New
Capital Securities to be received by it
were acquired in the course of its
ordinary business; and (iii) it is not
engaged in, and does not intend to
engage in, a distribution of the New
Capital Securities and has no
arrangement or understanding with any
person to participate in a distribution
(within the meaning of the Securities
Act) of the New Capital Securities.
Each broker-dealer that receives New
Capital Securities for its own account
pursuant to the Exchange Offer must
acknowledge that it will deliver a
prospectus in connection with any resale
of such New Capital Securities. The
Letter of Transmittal states that by so
acknowledging and by delivering a
prospectus, a broker-dealer will not be
deemed to admit that it is an
"underwriter" within the meaning of the
Securities Act. This Prospectus, as it
may be amended or supplemented from time
to time, may be used by a broker-dealer
in connection with resales of New
Capital Securities received in exchange
for Old Capital
6
<PAGE>
Securities where such Old Capital
Securities were acquired by such
broker-dealer as a result of market-
making activities or other trading
activities. The Company and the Trust
have agreed that, starting on the date
on which the Exchange Offer is
consummated and ending on the close of
business 90 days after such date, they
will make this Prospectus, as amended or
supplemented, available to any
broker-dealer for use in connection with
any such resale. See "Plan of
Distribution."
In that regard, each Exchanging Dealer
who surrenders Old Capital Securities
pursuant to the Exchange Offer will be
deemed to have agreed, by execution of
the Letter of Transmittal or delivery of
an Agent's Message, that, upon receipt
of notice from the Company or the Trust
of the occurrence of any event or the
discovery of any fact which makes any
statement contained or incorporated by
reference in this Prospectus untrue in
any material respect or which causes
this Prospectus to omit to state a
material fact necessary in order to make
the statements contained or incorporated
by reference herein, in the light of the
circumstances under which they were
made, not misleading, or of the
occurrence of certain other events
specified in the Registration Rights
Agreement, such Exchanging Dealer will
suspend the sale of New Securities
pursuant to this Prospectus until the
Company or the Trust has amended or
supplemented this Prospectus to correct
such misstatement or omission and has
furnished copies of the amended or
supplemented Prospectus to such
Exchanging Dealer, or the Company or the
Trust has given notice that the sale of
the New Securities may be resumed, as
the case may be.
Exchange Agent......................... The Exchange Agent is The Chase
Manhattan Bank. The address and
telephone and facsimile numbers of the
Exchange Agent are set forth under "The
Exchange Offer -- Exchange Agent" and in
the Letter of Transmittal.
Use of Proceeds....................... Neither the Company nor the Trust will
receive any cash proceeds from the
issuance of the New Capital Securities
offered hereby. See "Use of Proceeds."
7
<PAGE>
Certain Federal Income
Tax Consequences; ERISA
Considerations....................... Holders of Old Capital Securities should
review the information set forth under
"Certain Federal Income Tax
Consequences" and "ERISA Considerations"
prior to tendering Old Capital
Securities in the Exchange Offer.
THE CAPITAL SECURITIES
The Exchange Offer applies to the Old Securities. The terms of the New
Securities are identical in all material respects to the respective terms of the
Old Securities, except that (i) the New Securities have been registered under
the Securities Act and therefore will not be subject to certain restrictions on
transfer applicable to the Old Securities, (ii) the New Capital Securities will
not provide for any increase in the Distribution rate thereon, and (iii) the New
Junior Subordinated Debt Securities will not provide for any increase in the
interest rate thereon. In the event that the Exchange Offer is consummated, any
Old Capital Securities which remain outstanding after consummation of the
Exchange Offer and the New Capital Securities issued in the Exchange Offer will
vote together as a single class for purposes of determining whether holders of
the requisite percentage in outstanding liquidation amount thereof have taken
certain actions or exercised certain rights under the Declaration.
General............................... The Capital Securities represent
undivided preferred beneficial interests
in the Trust's assets, which consist
solely of the Junior Subordinated
Debentures. The Junior Subordinated
Debentures, in which the proceeds of the
Trust Securities are invested, mature on
December 31, 2026, unless the Junior
Subordinated Debentures are redeemed by
the Company prior to such maturity as
described under "Description of the
Capital Securities-Redemption."
Distributions......................... The distributions payable on the Capital
Securities are fixed at a rate per annum
of 9.98% of the stated liquidation
amount of $1,000 per Capital Security
and will be cumulative, will accrue from
April 23, 1997, the date of original
issuance of the Old Capital Securities,
and (subject to the extensions of
distribution payment periods described
below) are payable semiannually, in
arrears, on June 30 and December 31 of
each year, commencing June 30, 1997. See
"Description of the Capital
Securities-Distributions."
Extension Periods..................... So long as no Debenture Event of Default
(as defined herein) has occurred and is
continuing, Distributions on Capital
Securities may be deferred for the
duration of any Extension Period elected
by the Company with respect to
8
<PAGE>
the payment of interest on the Junior
Subordinated Debentures. No Extension
Period will exceed 10 consecutive
semi-annual periods or extend beyond the
Stated Maturity Date. See "Description
of Junior Subordinated Debentures --
Option to Extend Interest Payment Date"
and "Certain Federal Income Tax
Considerations -- Interest, Original
Issue Discount, Premium and Market
Discount."
Ranking.............................. The Capital Securities rank pari passu,
and payments thereon will be made pro
rata, with the Common Securities except
as described under "Description of
Capital Securities-- Subordination of
Common Securities." The Junior
Subordinated Debentures rank pari passu
with all other junior subordinated
debentures issued by the Company ("OTHER
DEBENTURES"), which will be issued and
sold (if at all) to other trusts
established by the Company (if any), in
each case similar to the Trust ("OTHER
TRUSTS"), and will be unsecured and
subordinate and rank junior in right of
payment to all Senior Indebtedness to
the extent and in the manner set forth
in the Indenture. See "Description of
Junior Subordinated Debentures." There
are not currently any securities which
would constitute Other Debentures. The
Guarantee will constitute an unsecured
obligation of the Company and will be
subordinate and rank junior in right of
payment to all Senior Indebtedness to
the extent and in the manner set forth
in the Guarantee Agreements. In
addition, because the Company is a
holding company, the Company's
obligations under the Junior
Subordinated Debentures and the
Guarantee will be effectively
subordinated to all existing and future
liabilities, including indebtedness, of
the Company's subsidiaries, including
the Bank. See "Description of the
Guarantee" and "Risk Factors-- Ranking
of Subordinate Obligations Under the
Guarantee and Junior Subordinated
Debentures."
Redemption........................... The Trust Securities are subject to
mandatory redemption in a Like Amount,
(i) in whole but not in part, on the
Stated Maturity Date upon repayment of
the Junior Subordinated Debentures, (ii)
in whole but not in part, at any time
before the Initial Optional Prepayment
Date contemporaneously with the optional
prepayment of the Junior Subordinated
Debentures by the Company upon the
occurrence and continuation of a Special
Event and (iii) in
9
<PAGE>
whole or in part, on or after the
Initial Optional Prepayment Date
contemporaneously with the optional
prepayment by the Company of the Junior
Subordinated Debentures, in each case at
the applicable Redemption Price. See
"Description of Capital Securities --
Redemption."
Transfer.............................. The Old Capital Securities were issued,
and the New Capital Securities will be
issued, and may be transferred only in
blocks having a Liquidation Amount of
not less than $100,000 (100 Capital
Securities). See "Description of Capital
Securities-- Restrictions on Transfer."
Any such transfer of Capital Securities
in a block having a Liquidation Amount
of less than $100,000 shall be deemed to
be void and of no legal effect
whatsoever.
Absence of Market for the
Capital Securities.................... The New Capital Securities will be a new
issue of securities for which there
currently is no market. Although the
Initial Purchasers have informed the
Trust and the Company in connection with
the issuance of the Old Capital
Securities that they each currently
intend to make a market in the Old
Capital Securities, the Initial
Purchasers are not obligated to make a
market in the Old Securities or the New
Securities, and any such market making
may be discontinued at any time without
notice. Accordingly, there can be no
assurance as to the development or
liquidity of any market for the Capital
Securities. The Trust and the Company
will not apply for listing of the New
Capital Securities on any securities
exchange or automated quotation system.
See "Plan of Distribution."
Risk Factors.......................... Prospective investors should carefully
consider the matters set forth under
"Risk Factors."
10
<PAGE>
RISK FACTORS
Holders of the Old Capital Securities should carefully review the
information contained elsewhere in this Prospectus and should particularly
consider the following matters prior to tendering Old Capital Securities in the
Exchange Offer.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND JUNIOR
SUBORDINATED DEBENTURES
The obligations of the Company under the Guarantee and under the
Junior Subordinated Debentures are unsecured and subordinate and rank junior in
right of payment to all present and future Senior Indebtedness of the Company to
the extent and in the manner set forth in the Guarantee and the Indenture,
respectively. No payment may be made of the principal of, or premium, if any, or
interest on the Junior Subordinated Debentures, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Junior Subordinated
Debentures, at any time when (i) there shall have occurred and be continuing a
default in any payment in respect of any Senior Indebtedness, or there has been
an acceleration of the maturity thereof because of a default or (ii) in the
event of the acceleration of the maturity of the Junior Subordinated Debentures
until payment has been made on all Allocable Amounts (as defined herein) of
Senior Indebtedness. At March 31, 1997, the aggregate principal amount of
outstanding Senior Indebtedness of the Company was approximately $4.5 million.
The Company is a holding company that conducts its operations primarily through
its subsidiaries. The right of the Company to participate in any distribution of
assets of any subsidiary upon such subsidiary's liquidation or reorganization or
otherwise (and thus the ability of holders of the Capital Securities to benefit
indirectly from such distribution) is subject to the prior claims of creditors
of that subsidiary, except to the extent that the Company may itself be
recognized as a creditor of that subsidiary. In addition, the Bank is subject to
certain restrictions imposed by federal law on any extensions of credit to, and
certain other transactions with, the Company and certain other affiliates, and
on investments in stock or other securities thereof. Such restrictions prevent
the Company and such other affiliates from borrowing from the Bank unless the
loans are secured by various types of collateral. Further, such secured loans,
other transactions and investments by the Bank are generally limited in amount
as to the Company and as to each of such other affiliates to 10% of the Bank's
capital and surplus and as to the Company and all of such other affiliates to an
aggregate of 20% of the Bank's capital and surplus. In addition, payment of
dividends to the Company by the Bank is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires approval by banking regulatory authorities. None of the
Indenture, the Guarantee, the Common Guarantee or the Declaration places any
limitation on the amount of secured or unsecured debt, including Senior
Indebtedness, that may be incurred by the Company or any of its subsidiaries.
See "Description of the Guarantee -- Status" and "Description of the Junior
Subordinated Debentures -- Subordination."
The ability of the Trust to pay amounts due on the Capital Securities
is dependent upon the Company making payments on the Junior Subordinated
Debentures as and when required.
11
<PAGE>
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSIDERATIONS
So long as no Debenture Event of Default shall have occurred and be
continuing, the Company has the right under the Indenture to defer payments of
interest on the Junior Subordinated Debentures at any time or from time to time
for a period not exceeding 10 consecutive semi-annual periods with respect to
each Extension Period, provided that no Extension Period may extend beyond the
Stated Maturity Date. Upon any such deferral, semi-annual Distributions on the
Capital Securities by the Trust will be deferred (and the amount of
Distributions to which holders of the Capital Securities are entitled will
accumulate additional Distributions thereon at the rate of 9.98% per annum,
compounded semi-annually) from the relevant payment date for such Distributions
during any such Extension Period.
The Company may extend any existing Extension Period, provided that
such extension does not cause such Extension Period to exceed 10 consecutive
semi-annual periods or to extend beyond the Stated Maturity Date. Upon the
expiration of any Extension Period and the payment of all interest then accrued
and unpaid on the Junior Subordinated Debentures (together with interest thereon
at the annual rate of 9.98%, compounded semi-annually, to the extent permitted
by applicable law), the Company may elect to begin a new Extension Period,
subject to the above requirements. There is no limitation on the number of times
that the Company may elect to begin an Extension Period. See "Description of
Capital Securities -- Distributions" and "Description of Junior Subordinated
Debentures -- Option to Extend Interest Payment Period."
Should the Company exercise its rights to defer payments of interest
by extending the interest payment period, each holder of Capital Securities will
continue to accrue original issue discount ("OID") for United States federal
income tax purposes in respect of the deferred interest allocable to its Capital
Securities. As a result, holders of Capital Securities will recognize income for
United States federal income tax purposes in advance of the receipt of cash and
will not receive the cash from the Trust related to such income if such holder
disposes of its Capital Securities prior to the record date for the date on
which distributions of such amounts are made. The Company has no current
intention of exercising its right to defer payments of interest by extending the
interest payment period on the Junior Subordinated Debentures. However, should
the Company determine to exercise such right in the future, the market price of
the Capital Securities is likely to be affected. A holder that disposes of its
Capital Securities during an Extension Period, therefore, might not receive the
same return on its investment as a holder that continues to hold its Capital
Securities. In addition, as a result of the existence of the Company's rights to
defer interest payments, the market price of the Capital Securities (which
represents an undivided beneficial interest in the Junior Subordinated
Debentures) may be more volatile than other securities on which OID accrues that
do not have such rights. See "Certain Federal Income Tax Considerations --
Interest, Original Issue Discount, Premium and Market Discount" and "-- Sale or
Redemption of Capital Securities."
REDEMPTION OR DISTRIBUTION
Upon the occurrence and continuation of a Special Event (including a
Tax Event or a Regulatory Capital Event, in each case, as defined under
"Description of Junior Subordinated Debentures -- Special Event Prepayment"),
the Company will have the right to prepay the Junior Subordinated Debentures,
before the Initial Optional Prepayment Date, in whole (but not in part) at the
12
<PAGE>
Special Event Prepayment Price within 90 days following the occurrence of such
Special Event and therefore cause a mandatory redemption of the Capital
Securities at the Special Event Redemption Price. On or after the Initial
Optional Prepayment Date, the Company may prepay the Junior Subordinated
Debentures in whole or in part for any reason and thereby cause an optional
redemption of the Capital Securities, in whole or in part, at the Optional
Redemption Price. Any such redemption is subject to the Company having received
prior approval of the Federal Reserve to do so if then required under applicable
guidelines or policies of the Federal Reserve. See "Description of Capital
Securities -- Redemption" and "-- Liquidation of the Trust and Distribution of
the Junior Subordinated Debentures."
The Company has the right at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, cause the Junior Subordinated Debentures to be distributed to
the holders of the Trust Securities in liquidation of the Trust. Such right is
subject to (i) the Company having received an opinion of counsel to the effect
that such distribution will not be a taxable event to holders of Capital
Securities and (ii) prior approval of the Federal Reserve if then required.
Under current United States federal income tax law, a distribution of Junior
Subordinated Debentures upon the dissolution of the Trust would not be a taxable
event to holders of the Capital Securities. If, however, the Trust is
characterized for United States federal income tax purposes as an association
taxable as a corporation at the time of dissolution of the Trust, the
distribution of the Junior Subordinated Debentures may constitute a taxable
event to holders of Capital Securities. Moreover, upon the occurrence of a
Special Event, a dissolution of the Trust in which holders of the Capital
Securities receive cash would be a taxable event to such holders. See "Certain
Federal Income Tax Considerations -- Receipt of Junior Subordinated Debentures
Upon Liquidation of the Trust."
On February 6, 1997, President Clinton submitted to Congress a
proposal to implement certain tax legislation (the "PROPOSAL"). As explained in
the Joint Committee on Taxation Description and Analysis of Certain Revenue
Raising Provisions contained in President Clinton's Fiscal 1998 Budget Proposals
(the "JOINT COMMITTEE DESCRIPTION"), the Proposal contains a provision which
generally would deny a deduction for interest on an instrument which (a) is
issued by a corporation, (b) has a maximum term of more than 15 years and (c) is
not shown as indebtedness on the separate balance sheet of the issuer (or, if
the instrument is issued to a related party other than a corporation and the
holder or some other related party issues a related instrument, such instrument
is not shown as indebtedness on the issuer's consolidated balance sheet). If
such provision were to apply to the Junior Subordinated Debentures, the Company
would be unable to deduct interest on the Junior Subordinated Debentures, which
under current law, the Company believes it will be able to do. As explained in
the Joint Committee Description, such provision generally would be effective for
instruments issued on or after the date of first congressional committee action.
To date there has been no congressional committee action on the Proposal, and
neither the markup of the legislation proposed by the Chairman of the House
Committee on Ways and Means, nor the legislation proposed by the Chairman of the
Senate Committee on Finance, which will serve as the basis for markup by that
committee, contained the Proposal. There can be no assurance that the Proposal
will not result in legislation having a retroactive effect which would apply to
the Junior Subordinated Debentures. Furthermore, there can be no assurance that
other legislation enacted after the date hereof will not otherwise adversely
affect the ability of the Company to deduct the interest payable on the Junior
Subordinated Debentures. Accordingly, there can be no assurance that the
Proposal or any other such legislation will not result in a Tax Event, which
would permit the Company to cause a redemption of the Capital Securities before,
or after, June 30, 2007. See "Description of Capital Securities --
13
<PAGE>
Redemption," "Description of Junior Subordinated Debentures -- Special Event
Prepayment" and "Certain Federal Income Tax Considerations -- Proposed
Tax Legislation."
POSSIBLE ADVERSE EFFECT ON MARKET PRICES
There can be no assurance as to the market prices for Capital
Securities or Junior Subordinated Debentures distributed to the holders of
Capital Securities if a termination of the Trust were to occur. Accordingly, the
Capital Securities or the Junior Subordinated Debentures may trade at a discount
from the price that the investor paid to purchase the Old Capital Securities.
Because holders of Capital Securities may receive Junior Subordinated Debentures
in liquidation of the Trust and because Distributions are otherwise limited to
payments on the Junior Subordinated Debentures, prospective holders of New
Capital Securities are also making an investment decision with regard to the
Junior Subordinated Debentures and should carefully review all the information
regarding the Junior Subordinated Debentures contained herein prior to tendering
the Old Capital Securities. See "Description of Junior Subordinated Debentures."
RIGHTS UNDER THE GUARANTEE
The Chase Manhattan Bank is the Guarantee Trustee and will hold the
Guarantee for the benefit of the holders of the Capital Securities. The Chase
Manhattan Bank also acts as Property Trustee and as Debenture Trustee under the
Indenture. Chase Manhattan Bank Delaware acts as Delaware Trustee under the
Declaration. The Guarantee guarantees to the holders of the Capital Securities
the following payments, to the extent not paid by the Trust: (i) any accumulated
and unpaid Distributions required to be paid on the Capital Securities, to the
extent that the Trust has funds on hand legally available therefor; (ii) the
applicable Redemption Price with respect to any Capital Securities called for
redemption, to the extent that the Trust has funds on hand legally available
therefor; and (iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of the Trust (unless the Junior Subordinated Debentures are
distributed to holders of the Capital Securities), the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and unpaid Distributions
to the date of payment, to the extent that the Trust has funds on hand legally
available therefor on such date and (b) the amount of assets of the Trust
remaining available for distribution to holders of the Capital Securities on
such date. The holders of a majority in Liquidation Amount of the Capital
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of the
Guarantee or to direct the exercise of any trust power conferred upon the
Guarantee Trustee. Any holder of the Capital Securities may institute a legal
proceeding directly against the Company to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust, the
Guarantee Trustee or any other person or entity. If the Company defaults on its
obligation to pay amounts payable under the Junior Subordinated Debentures, the
Trust will not have sufficient funds for the payment of Distributions or amounts
payable on redemption of the Capital Securities or otherwise, and, in such
event, holders of the Capital Securities will not be able to rely upon the
Guarantee for payment of such amounts. Instead, in the event a Debenture Event
of Default shall have occurred and be continuing and such event is attributable
to the failure of the Company to pay principal of or premium, if any, or
interest on the Junior Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Capital Securities may institute a
legal proceeding directly against the Company for enforcement of payment to such
holder of
14
<PAGE>
the principal of or premium, if any, or interest on such Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of the
Capital Securities of such holder (a "DIRECT ACTION"). Notwithstanding any
payments made to a holder of Capital Securities by the Company in connection
with a Direct Action, the Company shall remain obligated to pay the principal of
and premium, if any, and interest on the Junior Subordinated Debentures, and the
Company shall be subrogated to the rights of the holder of such Capital
Securities with respect to payments on the Capital Securities to the extent of
any payments made by the Company to such holder in any Direct Action. Except as
described herein, holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Junior Subordinated
Debentures or to assert directly any other rights in respect of the Junior
Subordinated Debentures. See "Description of Junior Subordinated Debentures --
Enforcement of Certain Rights by Holders of Capital Securities" and "--
Debenture Events of Default" and "Description of the Guarantee." The Declaration
provides that each holder of Capital Securities by acceptance thereof agrees to
the provisions of the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities generally have voting rights relating
only to the modification of the terms of the Capital Securities and the exercise
of the Trust's rights as holder of the Junior Subordinated Debentures. Holders
of Capital Securities are not entitled to vote to appoint, remove or replace, or
to increase or decrease the number of, the Issuer Trustees, which voting rights
are vested exclusively in the holder of the Common Securities, except as
described under "Description of Capital Securities -- Removal of Issuer
Trustees." See "Description of Capital Securities -- Voting Rights; Amendment of
the Declaration."
TRADING PRICE
The Capital Securities may trade at a price that does not fully
reflect the value of accrued but unpaid interest with respect to the underlying
Junior Subordinated Debentures. A holder who disposes of its Capital Securities
between record dates for payments of distributions thereon will be required to
include accrued but unpaid interest on the Junior Subordinated Debentures
through the date of disposition in income as ordinary income (i.e., OID), and to
add such amount to its adjusted tax basis in its share of the underlying Junior
Subordinated Debentures deemed disposed of. To the extent the selling price is
less than the holder's adjusted tax basis, a holder will recognize a capital
loss. Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for United States federal income tax purposes. See
"Certain Federal Income Tax Considerations -- Interest, Original Issue Discount,
Premium and Market Discount" and "-- Sale or Redemption of Capital Securities."
ABSENCE OF PUBLIC MARKET AND TRANSFER RESTRICTIONS
The Capital Securities may only be transferred in blocks having a
Liquidation Amount of not less than $100,000 (100 Capital Securities). There is
no existing market for the Capital Securities and there can be no assurance as
to the liquidity of any markets that may develop for the Capital Securities, the
ability of the holders to sell their Capital Securities or at what price holders
of the Capital Securities will be able to sell their Capital Securities as the
case may be. Future trading prices of the Capital Securities will depend on many
factors including, among other things, prevailing interest rates, the
15
<PAGE>
Company's operating results, and the market for similar securities. The Initial
Purchasers have informed the Trust and the Company that the Initial Purchasers
intend to make a market in the Capital Securities. However, the Initial
Purchasers are not obligated to do so and any such market making activity may be
terminated at any time without notice to the holders of the Capital Securities.
In addition, such market making activity will be subject to the limits of the
Securities Act and may be limited during the pendency of the Exchange Offer.
Notwithstanding the registration of the New Capital Securities in the Exchange
Offer, holders who are "affiliates" of the Company or the Trust as defined under
Rule 405 of the Securities Act may publicly offer for sale or resell the New
Capital Securities only in compliance with the provisions of Rule 144 under the
Securities Act. Each tendering holder of the Old Capital Securities will be
deemed to have made certain acknowledgments, representations and agreements. In
addition, each broker-dealer that receives New Capital Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. See
"Plan of Distribution."
CONDITIONS TO COMPLETION OF THE SPIN OFF
As set forth herein under "Imperial Bancorp -- The Spin Off
Transactions," on February 21, 1997, the Company announced its intention to spin
off to its stockholders a portion of its specialty lending and finance
businesses that focus on the entertainment industry, as well as certain other
operations. The completion of the spin off is subject to receipt of a private
letter ruling from the Internal Revenue Service (the "IRS") to the effect that
the transaction will not be taxable to the Company, its stockholders or the
Bank. In addition, the spin off may require regulatory approval. It is currently
anticipated that the spin off will be effected in late 1997 or early 1998. No
assurance can be given as to whether the private letter ruling will be received
in satisfactory form or whether the spin off will be completed, if at all, on a
basis consistent with current timing expectations. See "Pro Forma Financial
Information." On April 17, 1997, tax legislation was introduced in Congress
relating to the tax-free nature of certain spin off transactions. It is
uncertain whether such legislation will impede the Company's ability to effect
the spin off on a basis that is not taxable to the Company, its stockholders or
the Bank. Changes to the proposed legislation are expected which will clarify
whether such proposals, if enacted in their current form or as modified, will
apply in such a manner. The Company intends to seek to complete the spin off and
is hopeful that any tax legislation would not prevent the Company from effecting
the spin off on a tax-free basis, although there can be no assurance thereof.
CONSEQUENCES OF FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the
Securities Act or any state securities laws and, therefore, may not be offered,
sold or otherwise transferred except in compliance with the registration
requirements of the Securities Act and any other applicable securities laws, or
pursuant to an exemption therefrom or in a transaction not subject thereto, and
in each case in compliance with certain other conditions and restrictions. Old
Capital Securities which remain outstanding after consummation of the Exchange
Offer will continue to bear a legend reflecting such restrictions on transfer.
In addition, upon consummation of the Exchange Offer, holders of Old Capital
Securities which remain outstanding will not be entitled to any rights to have
such Old Capital Securities registered under the Securities Act or to any
similar rights under the Registration Rights Agreement (subject to certain
limited exceptions). The Company and the Trust do not intend to register
16
<PAGE>
under the Securities Act any Old Capital Securities which remain outstanding
after consummation of the Exchange Offer (subject to such limited exceptions, if
applicable).
To the extent that Old Capital Securities are tendered and accepted
in the Exchange Offer, a holder's ability to sell untendered Old Capital
Securities could be adversely affected. In addition, any trading market for Old
Capital Securities which remain outstanding after the Exchange Offer could be
adversely affected.
The New Capital Securities and any Old Capital Securities which
remain outstanding after consummation of the Exchange Offer will constitute a
single series of Capital Securities under the Declaration and, accordingly, will
vote together as a single class for purposes of determining whether holders of
the requisite percentage in outstanding liquidation amount thereof have taken
certain actions or exercised certain rights under the Declaration. See
"Description of Capital Securities -- Voting Rights; Amendment of the
Declaration."
The Old Capital Securities provide that, if the Exchange Offer is not
consummated by November 19, 1997 (subject to extension in certain
circumstances), the distribution rate borne by the Old Capital Securities will
increase by 0.25% per annum until the Exchange Offer is consummated. See
"Description of Capital Securities." Following consummation of the Exchange
Offer, the Old Capital Securities will not be entitled to any increase in the
distribution rate thereon. The New Capital Securities will not be entitled to
any such increase in the distribution rate thereon.
EXCHANGE OFFER PROCEDURES
Issuance of the New Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Exchange Agent of such Old Capital Securities, a properly
completed and duly executed Letter of Transmittal or Agent's Message in lieu
thereof and all other required documents. Therefore, holders of the Old Capital
Securities desiring to tender such Old Capital Securities in exchange for New
Capital Securities should allow sufficient time to ensure timely delivery.
Neither the Company, the Trust nor the Exchange Agent is under any duty to give
notification of defects or irregularities with respect to the tenders of Old
Capital Securities for exchange.
17
<PAGE>
IMPERIAL BANCORP
GENERAL
Imperial Bancorp (the "Company") is a registered bank holding company
whose principal operating subsidiary is Imperial Bank, a California chartered
commercial bank (the "Bank"). The Bank, the eighth largest commercial bank in
California based on deposits as of December 31, 1996, is engaged in general
commercial banking through its 11 branches in California and maintains three
additional loan production offices in Boston, Massachusetts, Austin, Texas and
Phoenix, Arizona. As of March 31, 1997, the Company had total assets of $3.7
billion and deposits of $3.3 billion, and for the quarter ended March 31, 1997,
the Company had net income of $8.0 million.
The Company offers a wide range of financial services tailored to
corporate customers, entrepreneurs and professionals. The Bank's business
strategy has been to develop specialty financial products and services for
industries such as health care, emerging growth technology, entertainment,
manufacturing and distribution, garment, and title and escrow, in addition to
merchant card transaction processing, trust and custodial services. The Company
competes for the banking business of middle market companies (between $10
million and $150 million in annual sales) through the development of special
products and services, including employing lending and deposit specialists in
the targeted industry groups.
The Company is incorporated in California and its principal executive
offices are located at 9920 South La Cienega Boulevard, Inglewood, California
90301. Its telephone number is (310) 417- 5600.
THE SPIN OFF TRANSACTIONS
Subject to satisfaction of the conditions described below, the
Company expects to spin off to its stockholders in a tax-free distribution the
capital stock of Imperial Financial Group, Inc., a newly formed Delaware
corporation ("IFG"), the assets of which will consist of a portion of the
Company's specialty lending and finance businesses that focus on the
entertainment industry, as well as certain other operations (the transactions
being collectively referred to herein as the "SPIN OFF TRANSACTIONS").
See "Risk Factors -- Conditions to Completion of the Spin Off."
The Bank will contribute to IFG (i) the assets and liabilities
relating to The Lewis Horwitz Organization, a division of the Bank that
specializes in motion picture and television finance, (ii) all of the common
stock of Imperial Trust Company, a California licensed trust company that offers
a wide range of trust and investment management services, (iii) all of the
common stock of a newly formed thrift and loan company that will hold the assets
and liabilities relating to the Bank's Small Business Administration lending
group, a division of the Bank that provides loans to small businesses, a portion
of which is guaranteed as to repayment by the U.S. Government, and (iv) the
common stock owned by the Bank (representing approximately 24.1% of all
outstanding common stock as of March 31, 1997) in Imperial Credit Industries,
Inc. ("ICII"), a publicly traded, diversified specialty finance company. The
Company intends to effect the spin off in late 1997 or early 1998.
18
<PAGE>
The Spin Off Transactions are subject to receipt of a favorable
ruling from the IRS to the effect that the Spin Off Transactions will not be
taxable to the Company, its stockholders or the Bank. The Spin Off Transactions
may also be subject to regulatory approval.
On a pro forma basis assuming the Spin Off Transactions were
consummated on January 1, 1997, the Company would have reported at March 31,
1997, total assets of approximately $3.7 billion, deposits of approximately $3.3
billion, and stockholders' equity of approximately $250.4 million. For the
quarter ended March 31, 1997, the Company would have reported income from
continuing operations of approximately $7.2 million.
FIRST QUARTER 1997 EARNINGS
Net income for the first quarter rose 17% to $7,953,000, or $0.30 per
share, from $6,796,000, or $0.26 per share, earned in the first quarter of 1996.
Income as measured by return on average total assets was 0.99% for the three
months ended March 31, 1997, as compared to 1.07% for the three months ended
March 31, 1996. Return on average stockholders' equity was 10.90% for the
quarter ended March 31, 1997, a decrease from the 11.70% return on average
stockholders' equity for the same period of 1996.
Net income for the first quarter 1997, excluding the impact of
donations of ICII stock to not-for-profit organizations and the discontinued
operation ("core net income"), increased 25% from the first quarter of 1996.
This improvement was mainly attributable to the 23% increase in average loans
resulting in higher net interest income. Net interest income and net interest
margin were $40.2 million and 5.7%, respectively, for the quarter ended March
31, 1997, as compared to $32.2 million and 5.8%, respectively, for the quarter
ended March 31, 1996. Another factor that contributed to the improvement of core
net income was a $1.8 million increase in core noninterest income for the first
quarter of 1997. These improvements were partially offset by an increase of $6.9
million in core noninterest expenses for the first quarter of 1997.
Noninterest income for the quarter ended March 31, 1997 totaled $16.1
million, an improvement from $12.3 million for the same period of 1996. The
increase was mainly due to the appreciation of ICII stock donated to
not-for-profit organizations, higher fee-based income, including item processing
fees and international fees, and income from the exercise and sale of stock
warrants. Partially offsetting these increases was a reduction in the equity of
net earnings in ICII.
Noninterest expenses amounted to $39.7 million for the quarter ended
March 31, 1997, as compared to $30.2 million reported for the same period of
1996. This increase reflects the addition of personnel and the opening of one
regional and several loan production offices since the first quarter of last
year. Also contributing to higher noninterest expenses were increases in
customer service and data processing related expenses, and charitable donations.
Offsetting these increases were reductions in real estate owned ("REO") expense
and lawsuit settlements.
At March 31, 1997, the Company's total assets were $3.7 billion,
total loans were $2.2 billion and stockholders' equity and allowance for loan
losses totaled $337 million. This compares to total
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<PAGE>
assets of $2.8 billion, total loans of $1.7 billion and stockholders' equity and
allowance for loan losses of $274 million at March 31, 1996 and total assets of
$3.4 billion, total loans of $2.1 billion and stockholders' equity and allowance
for loan losses of $322 million at December 31, 1996.
Total deposits at March 31, 1997 amounted to $3.3 billion, which
included $1.6 billion, or 49%, of noninterest bearing demand deposits. This
compares to total deposits of $2.5 billion at March 31, 1996, which included
$1.2 billion, or 48%, of noninterest bearing demand deposits. At December 31,
1996, total deposits were $3.0 billion, including $1.5 billion, or 50%, in
demand deposits. The Company's average demand deposits and average stockholders'
equity funded 46% of average total assets for the quarter ended March 31, 1997,
which was the same percentage funded in the quarter ended March 31, 1996.
At March 31, 1997, the allowance for loan losses amounted to $38.6
million or 1.8% of total loans as compared to $39.2 million or 2.2% of total
loans at March 31, 1996 and $36.1 million or 1.8% of total loans at December 31,
1996. The provision for loan losses totaled $3.3 million for the quarter ended
March 31, 1997, as compared to $2.7 million reported for the quarter ended March
31, 1996. Net charge-offs for the quarter ended March 31, 1997 totaled $0.7
million, a $0.2 million decrease from the level experienced in the same quarter
of 1996.
Nonaccrual loans of $17.0 million at March 31, 1997 decreased $13.8
million from March 31, 1996 and $3.4 million from year end 1996. The allowance
for loan losses coverage of nonaccrual loans at March 31, 1997 approximated
227%, up from 127% at March 31, 1996. Restructured loans at March 31, 1997
totaled $25.4 million, down $10.6 million from March 31, 1996 and $3.3 million
from December 31, 1996. REO of $2.2 million at March 31, 1997 decreased $7.5
million from March 31, 1996 and increased $0.1 million from year end 1996.
Imperial Bank is classified "Well Capitalized" with leverage, Tier I
and total capital ratios at March 31, 1997, of 8.7%, 9.5% and 10.8%,
respectively, as compared to 8.5%, 9.3% and 10.5%, respectively, at March 31,
1996.
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<PAGE>
USE OF PROCEEDS
Neither the Company nor the Trust will receive any cash proceeds from
the issuance of the New Capital Securities offered hereby. In consideration for
issuing the New Capital Securities in exchange for Old Capital Securities as
described in this Prospectus, the Trust will receive Old Capital Securities in
like liquidation amount. The Old Capital Securities surrendered in exchange for
the New Capital Securities will be retired and cancelled.
All of the proceeds from the sale of the Old Capital Securities and
the Common Securities were invested by the Trust in the Old Junior Subordinated
Debentures. The Company applied the net proceeds from the sale of the Old Junior
Subordinated Debentures of approximately $71,892,250 to its general funds to be
used for general corporate purposes (which may include additional investments in
the Bank and/or acquisition opportunities which may arise from time to time).
The precise amount and timing of the application of such net proceeds used for
such corporate purposes cannot be determined at this time. Pending such
application by the Company, such net proceeds may be temporarily invested in
short-term interest bearing securities. The Old Capital Securities are, and the
New Capital Securities will be, eligible to qualify as Tier 1 capital under the
capital guidelines of the Federal Reserve, provided that under current Federal
Reserve guidelines no more than 25% of the Company's Tier 1 Capital may comprise
Capital Securities and other capital securities and cumulative preferred stock
of the Company.
21
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth for the respective periods indicated
the ratios of earnings to fixed charges and the ratio of earnings to fixed
charges on a pro forma basis to reflect the Spin Off Transactions as if they had
occurred at the commencement of each of the periods. See "Risk Factors -
Conditions to Completion of the Spin Off."
<TABLE>
<CAPTION>
QUARTER
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
--------- -----------------------
1997 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
Excluding interest on deposits........................ 7.65x 13.64x 4.87x 2.04x -(1) 3.21x
Including interest on deposits........................ 1.62x 2.04x 1.43x 1.18x -(1) 1.23x
Post Spin Off Pro Forma Ratio of Earnings to Fixed Charges
Excluding interest on deposits........................ 7.93x 8.20x
Including interest on deposits........................ 1.62x 1.57x
<FN>
(1) Earnings were inadequate to cover fixed charges in 1993 by $6.9 million.
</FN>
</TABLE>
For purposes of computing the ratio of earnings to fixed charges,
earnings represent pretax income from continuing operations less undistributed
earnings from ICII, plus fixed charges. Fixed charges, excluding interest on
deposits, include interest expense (other than on deposits) and the proportion
deemed representative of the interest factor of rent expense, net of income from
subleases. Fixed charges, including interest on deposits, include all interest
expense and the proportion deemed representative of the interest factor of rent
expense, net of income from subleases.
22
<PAGE>
CAPITALIZATION
The following table sets forth, at March 31, 1997, the capitalization
of the Company, the capitalization as adjusted to give effect to the
consummation of the offering of the Capital Securities and the capitalization as
further adjusted to give effect to the Spin Off Transactions. See "Risk Factors
- -- Conditions to Completion of the Spin Off" and "Use of Proceeds". The table
should be read in conjunction with the Company's pro forma financial information
included elsewhere in this Prospectus and the Company's consolidated financial
statements and notes thereto included in the documents incorporated by reference
herein. See "Incorporation of Certain Documents by Reference" and "Pro Forma
Financial Information".
<TABLE>
<CAPTION>
AS OF MARCH 31, 1997
--------------------
AS FURTHER
ACTUAL AS ADJUSTED(1) ADJUSTED(2)
--------------------------------------------------------
(IN MILLIONS)
<S> <C> <C> <C>
Floating Rate Notes and Debentures due 1999 $4,450 $4,450 $4,450
-------------- -------------- --------------
Total long-term debt 4,450 4,450 4,450
-------------- -------------- --------------
Company obligated, mandatorily redeemable preferred
securities of subsidiary trust holding solely
subordinated debentures of the Company - 75,000 75,000
Stockholders' equity:
Common stock, no par value, authorized 50,000,000 shares;
issued 25,765,333 shares 230,163 230,163 230,163
Retained earnings 66,933 66,933 18,769
Unrealized gain on securities available for sale, net of tax 1,434 1,434 1,434
-------------- -------------- --------------
Total stockholders' equity 298,530 298,530 250,366
-------------- -------------- --------------
Total capitalization $302,980 $377,980 $329,816
============== ============== ==============
<FN>
- -----------------------
(1) Reflects the issuance of the Capital Securities. The Trust is a subsidiary of the Company and holds the Junior Subordinated
Debentures as its sole asset.
(2) Reflects the issuance of the Capital Securities and the consummation of the Spin Off Transactions. See "Pro Forma Financial
Information."
</FN>
</TABLE>
23
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA OF IMPERIAL BANCORP
The selected data presented below for the quarters ended March 31,
1997 and 1996, are derived from the Company's unaudited consolidated financial
statements on Form 10-Q incorporated by reference herein. The selected data
presented below as of the end of and for each of the years in the five-year
period ended December 31, 1996 are derived from the consolidated financial
statements of Imperial Bancorp which have been audited by KPMG Peat Marwick LLP,
independent auditors. The consolidated financial statements as of December 31,
1996 and 1995, and for each of the years for the three-year period ended
December 31, 1996, and the report thereon, are incorporated herein by reference.
See "Available Information."
<TABLE>
<CAPTION>
(UNAUDITED)
AS OF AND FOR
THE QUARTERS
ENDED MARCH 31, AS OF AND FOR THE YEARS ENDED DECEMBER 31,
--------------- ---------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS SUMMARY:
Interest income $ 58,733 $ 48,090 $ 209,156 $ 174,779 $ 135,772 $ 139,704 $ 220,619
Interest expense 18,572 15,869 68,054 60,154 37,415 36,280 101,683
-------- -------- ---------- --------- ---------- ---------- ----------
Net interest income 40,161 32,221 141,102 114,625 98,357 103,424 118,936
Provision for loan losses 3,290 2,669 6,881 16,122 12,174 41,977 20,859
-------- -------- ---------- --------- ---------- ---------- ----------
Net interest income after
provision for loan losses 36,871 29,552 134,221 98,503 86,183 61,447 98,077
Noninterest income 14,668 9,431 41,636 38,354 31,083 30,117 60,023
Equity in net income of ICII 1,461 2,860 21,444 5,192 3,489 7,898 -
Gains - sale of ICII stock - - 36,411 - - 14,538 5,033
Other noninterest expense 39,714 30,162 128,132 110,324 110,165 113,040 139,463
-------- -------- ---------- --------- ---------- ---------- ----------
Income before income taxes and
minority interest 13,286 11,681 105,580 31,725 10,590 960 23,670
Income tax provision (benefit) 5,254 5,001 43,278 10,071 3,968 (345) 12,756
Minority interest in income of
consolidated subsidiary - - - - - - 2,974
-------- -------- ---------- --------- ---------- ---------- ----------
Income from continuing operations 8,032 6,680 62,302 21,654 6,622 1,305 7,940
(Loss) income from operations of
discontinued operation, net of (79) 116 (8,168) 1,523 21 (251) -
tax
------- -------- --------- --------- ---------- --------- ----------
Net income $ 7,953 $ 6,796 $ 54,134 $ 23,177 $ 6,643 $ 1,054 $ 7,940
======== ======== ========== ========= ========== ========== ==========
PER SHARE DATA:
Weighted average shares
outstanding 26,870,245 25,812,749 26,116,767 25,168,985 24,200,733 23,431,464 23,304,714
Net income per share from
continuing operations $0.30 $0.26 $2.39 $0.86 $0.27 $0.06 $0.34
Net income per share 0.30 0.26 2.07 0.92 0.27 0.05 0.34
BALANCE SHEET SUMMARY:
Securities available for sale $497,269 $326,119 $426,336 $295,312 $388,249 $417,216 $495,414
Net loans 2,114,850 1,707,687 2,026,997 1,661,945 1,335,074 1,431,959 1,615,641
Total assets 3,711,047 2,831,008 3,350,170 2,788,374 2,378,709 2,794,517 3,405,971
Deposits 3,275,229 2,511,918 2,950,277 2,363,616 1,959,710 2,387,759 3,027,493
Stockholders' equity 298,530 234,854 286,351 228,236 197,776 185,205 184,048
24
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
(UNAUDITED)
AS OF AND FOR
THE QUARTERS
ENDED MARCH 31, AS OF AND FOR THE YEARS ENDED DECEMBER 31,
--------------- ----------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
PERFORMANCE RATIOS:(1)
Return on average equity from
continuing operations 11.01% 11.50% 23.98% 10.30% 3.45% 0.70% 4.35%
Return on average equity 10.90 11.70 20.83 11.03 3.48 0.57 4.35
Return on average assets from
continuing operations 1.00 1.05 2.24 0.93 0.30 0.05 0.22
Return on average assets 0.99 1.07 1.94 1.00 0.30 0.04 0.22
Net interest margin 5.74 5.79 5.76 5.73 5.21 4.69 3.73
CAPITAL RATIOS:
Equity to assets 8.04% 8.30% 8.55% 8.19% 8.31% 6.63% 5.40%
Average equity to average assets 9.12 9.13 9.33 9.04 8.64 7.02 5.11
Tangible equity to total assets 8.03 8.23 8.52 8.11 8.31 6.63 5.38
Tier I leverage (2) 8.67 8.49 8.66 8.58 8.96 6.87 6.11
Tier I capital (2) 9.52 9.26 9.21 9.31 10.61 9.61 8.99
Total capital (2) 10.77 10.52 10.46 10.57 11.87 10.87 10.25
ASSET QUALITY RATIOS:
Allowance for loan losses to total
loans (3) 1.79% 2.24% 1.75% 2.20% 2.91% 2.90% 2.37%
Allowance for loan losses to non-
performing loans 227.39 127.24 176.81 129.30 220.71 120.50 84.04
Non-performing loans to total
loans (3) 0.79 1.76 0.99 1.70 1.32 2.41 2.82
Non-performing assets to total loans,
plus real estate owned, net (3) 0.89 2.31 1.09 2.30 3.36 5.93 6.70
Net charge-offs to average loans(1) 0.14 0.21 0.45 1.22 1.09 2.46 1.02
<FN>
- ---------------
(1) Annualized.
(2) Ratio is for the Bank and not the Company.
(3) Total loans are net of unearned income and loan fees.
</FN>
</TABLE>
25
<PAGE>
COMPOSITION OF LOAN PORTFOLIO
The following table sets forth the amounts of loans outstanding by
type at the end of each of the past five years and as of March 31, 1997, net of
unearned discounts and deferred loan fees.
<TABLE>
<CAPTION>
(UNAUDITED)
AS OF MARCH 31, AS OF DECEMBER 31,
--------------- ----------------------------------------------------------------------
1997 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ----
(IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
Commercial loans $ 1,671 $ 1,595 $ 1,238 $ 920 $ 1,002 $ 1,025
Loans secured by real estate:
Real estate term loans 360 362 389 337 347 403
Interim construction loans 99 86 65 117 123 216
Consumer loans 23 20 7 1 3 11
-------- --------- --------- -------- --------- ---------
Total loans $ 2,153 $ 2,063 $ 1,699 $ 1,375 $ 1,475 $ 1,655
======== ========= ========= ======== ========= =========
</TABLE>
COMPOSITION OF NONACCRUAL LOAN PORTFOLIO, REAL ESTATE OWNED AND RESTRUCTURED
LOANS
The following table sets forth the amount of nonaccrual loans
outstanding by type, real estate owned, and restructured loans.
<TABLE>
<CAPTION>
(UNAUDITED)
AS OF MARCH 31, AS OF DECEMBER 31,
--------------- ------------------------------------------------------------------------
1997 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ----
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Nonaccrual loans
Commercial loans $ 8,515 $ 9,382 $ 11,714 $ 10,884 $ 23,489 $ 20,174
Real estate 8,479 10,760 17,212 7,272 12,029 26,429
Consumer loans - 248 - - - 65
-------- --------- --------- -------- --------- ---------
Total nonaccrual loans 16,994 20,390 28,926 18,156 35,518 46,668
Real estate owned ("REO"), net 2,204 2,126 10,329 28,971 55,250 68,820
-------- --------- --------- -------- --------- ---------
Total non-performing 19,198 22,516 39,255 47,127 90,768 115,488
-------- --------- --------- -------- --------- ---------
Restructured loans 25,395 28,681 33,608 5,948 4,662 65,003
-------- --------- --------- -------- --------- ---------
Total non-performing and restructured $ 44,593 $ 51,197 $ 72,863 $ 53,075 $ 95,430 $ 180,491
======== ========= ========= ======== ========= =========
<FN>
(1) For all periods presented, restructured loans were performing in
accordance with their modified terms. The average yield on restructured
loans was 8.4% at March 31, 1997.
</FN>
</TABLE>
26
<PAGE>
PRO FORMA FINANCIAL INFORMATION
The pro forma financial information is presented to reflect the
historical operations of the Company as if IFG, together with all of its assets
and liabilities, had been spun off at the commencement of each of the periods
and at the dates indicated below. The historical operations of IFG as a part of
the Company were adjusted to reflect IFG as a stand-alone company. The pro forma
adjustments represent IFG's unaudited financial information adjusted to reflect
the borrowings, equity, taxes, and various overhead costs related to IFG and
necessary deconsolidating entries.
Prior to distributing the common stock of IFG to the Company's
stockholders, the Company will contribute to IFG the following: (i) the assets
and liabilities relating to The Lewis Horwitz Organization, a division of the
Bank that specializes in motion picture and television finance, (ii) all of the
common stock of Imperial Trust Company, a California licensed trust company that
offers a wide range of trust and investment management services, (iii) all of
the common stock of a newly formed thrift and loan company that will hold the
assets and liabilities relating to the Bank's Small Business Administration
lending group, a division of the Bank that provides loans to small businesses, a
portion of which is guaranteed as to repayment by the U.S. Government, and (iv)
the common stock owned by the Bank (representing approximately 24.1% of all
outstanding common stock as of March 31, 1997) in ICII. The Company intends to
effect the spin off in late 1997 or early 1998. See "Risk Factors Conditions to
Completion of the Spin Off."
This pro forma information should be read in conjunction with the
Company's Quarterly Report on Form 10-Q for the period ended March 31, 1997 and
Annual Report on Form 10-K for the fiscal year ended December 31, 1996, both of
which are incorporated by reference in this Prospectus.
27
<PAGE>
<TABLE>
<CAPTION>
PRO FORMA FINANCIAL INFORMATION OF IMPERIAL BANCORP
---------------------------------------------------
(UNAUDITED)
-----------
QUARTER ENDED MARCH 31, 1997 YEAR ENDED DECEMBER 31, 1996 YEAR ENDED DECEMBER 31, 1995
---------------------------- ---------------------------- ----------------------------
ADJUST- ADJUST- ADJUST-
------- ------- ------
ACTUAL MENTS PRO FORMA ACTUAL MENTS PRO FORMA ACTUAL MENTS PRO FORMA
------ ----- --------- ----- ----- --------- ------ ----- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
PRO FORMA EARNINGS
SUMMARY:
Interest income $ 58,733 ($ 2,476) $ 56,257(1) $ 209,156 ($8,813) $ 200,343(1) $174,779 ($5,592) $169,187(1)
Interest expense 18,572 - 18,572 68,054 - 68,054 60,154 - 60,154
-------- -------- -------- --------- --------- --------- -------- -------- ---------
Net interest income 40,161 (2,476) 37,685 141,102 (8,813) 132,289 114,625 (5,592) 109,033
Provision for loan losses 3,290 (44) 3,246 6,881 (344) 6,537 16,122 (1,492) 14,630
-------- --------- -------- --------- --------- --------- -------- ------- ------
Net interest income after
provision for loan losses 36,871 (2,432) 34,439 134,221 (8,469) 125,752 98,503 (4,100) 94,403
Noninterest income 14,668 (5,921) 8,747 41,636 (16,263) 25,373 38,354 (11,335) 27,019
Equity in net income of ICII 1,461 (1,461) - 21,444(2) (21,444) - 5,192 (5,192) -
Gains - sale of ICII stock - - - 36,411 (36,411) - - - -
Other noninterest expenses 39,714 (8,342)(3) 31,372 128,132 (16,833)(3) 111,299 110,324 (10,395)(3) 99,929
-------- --------- ------- --------- --------- ------- -------- -------- ------
Pretax income from
continuing operations 13,286 (1,472) 11,814 105,580 (65,754) 39,826 31,725 (10,232) 21,493
Income tax provision 5,254 (680)(4) 4,574 43,278 (26,554)(4) 16,724 10,071 (4,341)(5) 5,730
-------- --------- ------- --------- -------- ------ ------ ------- -----
Income from continuing
operations $ 8,032 ($ 792) $ 7,240 $62,302 ($39,200) $23,102 $21,654 ($5,891) $15,763
======== ========= ======= ======= ======== ======= ======= ======= =======
See accompanying notes to proforma financial information.
</TABLE>
28
<PAGE>
<TABLE>
<CAPTION>
PRO FORMA FINANCIAL INFORMATION OF IMPERIAL BANCORP
(UNAUDITED)
AS OF MARCH 31, 1997 AS OF DECEMBER 31, 1996 AS OF DECEMBER 31, 1995
-------------------------------------- ----------------------------- -----------------------------
ADJUST- ADJUST- ADJUST-
------- ------- -------
ACTUAL MENTS PRO FORMA ACTUAL MENTS PRO FORMA ACTUAL MENTS PRO FORMA
PRO FORMA
BALANCE SHEET:
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Cash $ 291,574 $ 143 $ 291,717 $ 325,014 $ 26 $ 325,040 $ 242,018 $ 251 $ 242,269
Investments 1,145,177 (3,358) 1,141,819 852,416 (3,304) 849,112 765,637 (3,154) 762,483
Net loans 2,114,850 (84,960) 2,029,890 2,026,997 (73,865) 1,953,132 1,661,945 (75,518) 1,586,427
Investment in ICII 58,381 (58,381) - 57,736 (57,736) - 36,126 (36,126) -
Other assets 101,065 94,096(5) 195,161(1,5) 88,007 34,882 122,889 82,648 54,739 137,387(1)
----------- ---------- ---------- ---------- ---------- ---------- ---------- ---------- ----------
Total assets $ 3,711,047 ($ 52,460) $3,658,587 $3,350,170 ($ 99,997) $3,250,173 $2,788,374 ($ 59,808) $2,728,566
=========== ========== ========== ========== ========== ========== ========== ========== ==========
Deposits $ 3,275,229 $ 1,895 $3,277,124 $2,950,277 $ 2,657 $2,952,934 $2,363,616 $ 448 $2,364,064
Short term
borrowings 68,623 - 68,623 44,897 - 44,897 159,636 - 159,636
Long term
borrowings 4,450 - 4,450 4,455 - 4,455 5,906 - 5,906
Other liabilities 64,215 (6,191) 58,024 64,190 (5,281) 58,909 30,980 (2,085) 28,895
----------- --------- --------- ---------- -------- --------- -------- --------- ---------
Total liabilities 3,412,517 (4,296) 3,408,221 3,063,819 (2,624) 3,061,195 2,560,138 (1,637) 2,558,501
----------- --------- --------- ---------- -------- --------- --------- -------- ---------
Stockholders'
equity
Common stock 230,163 - 230,163 163,748 - 163,748 130,780 - 130,780
Unrealized gain,
net of tax 1,434 - 1,434 1,206 - 1,206 2,747 - 2,747
Retained earnings 66,933 (48,164)(5,6) 18,769(5) 121,397 (97,373)(6) 24,024(5) 94,709 (58,171)(6) 36,538
----------- --------- -------- --------- -------- --------- -------- -------- -------
Total stock-
holder' s equity 298,530 (48,164) 250,366 286,351 (97,373) 188,978 228,236 (58,171) 170,065
Total liabilities&
stockholders'
equity $ 3,711,047 ($52,460) $3,658,587 $3,350,170 ($99,997) $3,250,173 $2,788,374 ($ 59,808) $2,728,566
=========== ========= ========== ========== ========= ========== ========== ========== ==========
</TABLE>
See accompanying notes to pro forma financial information.
29
<PAGE>
PRO FORMA FINANCIAL INFORMATION OF IMPERIAL BANCORP
(UNAUDITED)
NOTES TO PRO FORMA FINANCIAL INFORMATION
(1) Borrowings from Imperial Bank and receivable from IFG
Historical operations of IFG have been adjusted to reflect the
funding of net assets by the Company. For the quarter ended March 31,
1997 and the years ended December 31, 1996 and 1995, interest charges
are based upon estimated average borrowings and the Company's
estimated cost of funds plus 1%. For the quarter ended March 31, 1997
and the years ended December 31, 1996 and 1995, the average
receivables were $27.7 million, $28.8 million and $17.2 million,
respectively, and related interest income was $0.3 million, $2.0
million and $1.3 million, respectively. As of March 31, 1997 and
December 31, 1996 and 1995, the receivable from IFG was $35.9
million, $7.2 million and $50.5 million, respectively.
(2) Equity in net income of ICII
Equity in net income of ICII of $21.4 million includes a pre-tax gain
of approximately $11.8 million which represents the Company's share
of ICII's total gains associated with the sale of a portion of the
common stock of SPFC held by ICII.
(3) Allocation of certain overhead costs
As divisions of the Bank, The Lewis Horwitz Organization and the
Bank's Small Business Administration lending group were not allocated
certain administrative overhead costs during the quarter ended March
31, 1997 and the years ended December 31, 1996 and 1995. Therefore,
the pro forma statements of operations include various costs
approximating $502,000, $365,000 and $257,000 which were allocated to
IFG based upon management's estimates of appropriate allocations of
costs for the quarter ended March 31, 1997 and the years ended
December 31, 1996 and 1995, respectively.
(4) Income taxes
IFG did not record income taxes in its historical operations. The pro
forma financial information set forth above reflects income taxes for
IFG as if it had been a separate entity for all years presented. The
provision for income taxes was calculated based on pretax income and
current effective tax rates.
(5) Assumed dividend on the effective date of the IFG spin off
Retained earnings and other assets at March 31, 1997 reflect a $50.0
million assumed dividend in conjunction with the spin off of IFG.
(6) Equity
30
<PAGE>
Since inception, The Lewis Horwitz Organization and the Bank's Small
Business Administration lending group have operated as divisions of
the Bank and have had no paid-in capital or retained earnings
recorded in their respective accounts. To properly reflect the
historical financial operations of IFG, retained earnings were
recorded as a result of income from these operations on an adjusted
historical basis.
31
<PAGE>
<TABLE>
<CAPTION>
PRO FORMA FINANCIAL INFORMATION OF IMPERIAL BANCORP
(UNAUDITED)
SELECTED PRO FORMA FINANCIAL RATIOS
AS OF AND FOR THE QUARTER AS OF AND FOR THE YEARS
ENDED MARCH 31, ENDED DECEMBER 31,
------------------------- -----------------------
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
PRO FORMA PERFORMANCE RATIOS:(1)
Return on average equity from continuing operations 15.03% 12.71% 10.31%
Return on average assets from continuing operations 0.94 0.86 0.70
Net interest margin 5.54 5.60 5.51
PRO FORMA CAPITAL RATIOS:
Equity to assets 6.84% 5.81% 6.23%
Average equity to average assets 6.28 6.79 6.78
Tangible equity to total assets 6.83 5.79 6.16
Tier I leverage (2) 8.09 6.37 7.09
Tier I capital (2) 9.07 6.78 7.61
Total capital (2) 10.34 8.03 8.86
PRO FORMA ASSET QUALITY RATIOS:
Allowance for loan losses to total loans (3) 1.81% 1.75% 2.21%
Allowance for loan losses to non-performing loans 246.65 190.10 126.12
Non-performing loans to total loans (3) 0.73 0.92 1.75
Non-performing assets to total loans, plus real estate
owned, net (3) 0.83 1.02 2.32
Net charge-offs to average loans(1) 0.13 0.45 1.25
<FN>
(1) Annualized.
(2) Ratio is for the Bank and not the Company.
(3) Total loans are net of unearned income and deferred loan fees.
</FN>
</TABLE>
32
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following sets forth certain beneficial ownership information as of
March 1, 1997 pertaining to the Company's common stock (the "Common Stock") by
persons known to the Company to own 5% or more of the Common Stock, current
directors of the Company and named executive officers. The information contained
herein has been obtained from the Company's records, from various filings made
by the named individuals with the Commission or from information furnished
directly by the individuals or entity to the Company.
The table should be read with the understanding that more than one person
may be the beneficial owner or possess certain attributes of beneficial
ownership with respect to the Common Stock. In addition, options with respect to
shares exercisable or shares issuable within 60 days of the date of this
information are deemed to be outstanding and have been utilized in calculating
the percentage ownership of those individuals possessing such interest. Thus,
the total number of shares of Common Stock considered to be outstanding for the
purposes of this table may vary depending upon the stockholder's particular
circumstance. For more information relating to share ownership, see the
Company's Proxy Statement dated April 4, 1997, a portion of which is
incorporated by reference herein.
<TABLE>
<CAPTION>
Number of
Shares Beneficially
Name of Beneficial Owner(1) Owned % of Shares
--------------------------- ------------------- ------------
<S> <C> <C>
1. George L. Graziadio, Jr.--Chairman of the Board 2,970,111 (1)(2)(3)(6) 11.59%
2. Norman P. Creighton--Director 834,214 (1) 3.25%
3. Imperial Trust Company, Trustee for Imperial
Bancorp Profit Sharing, Employee Stock
Ownership and 401K Plans 1,939,833 7.57%
4. Bernard G. LeBeau--Director 19,287 (2)(3) *
5. G. Louis Graziadio, III--Director 347,411 (3)(4)(5)(6) 1.35%
6. Dr. M. Norvel Young--Director 26,321 (2)(3) *
7. Richard K. Eamer--Director 26,321 (2)(3) *
8. H. Wayne Snavely--Director 1,366 (1) *
9. Lee E. Mikles--Director 68,186 (1)(2) *
10. Eldon K. Lloyd-Exec. VP of the Bank 55,909 (2)(3) *
11. Robert M. Franko--Exec. VP of the Bank 18,047 (2)(3) *
12. Robert Muehlenbeck--Exec. VP of the Bank 23,771 (2)(3) *
13. All Current Officers and Directors as a Group (19
persons) 4,678,639 (7) 18.26%
33
<PAGE>
Number of
Shares Beneficially
Name of Beneficial Owner(1) Owned % of Shares
--------------------------- ------------------- ------------
14. Graziadio Family Trust (Phillip M. Bardack,
Steven Calvillo, William R. Lang, Trustees)
--Beneficial Owner of More than Five Percent 1,401,354 5.47%
15. Novelly Investment Group
--Beneficial Owner of More than Five Percent 1,340,435 5.23%
* Represents less than 1%
- ---------------------------
<FN>
(1) The address of each of the beneficial owners other than Novelly
Investment Group is c/o the Company, 9920 South La Cienega Boulevard,
Inglewood, California 90301. The address for the Novelly Investment
Group is 8182 Maryland Avenue, 15th Floor, Clayton, Missouri 63105.
(2) George L. Graziadio, Jr., Norman P. Creighton and H. Wayne Snavely serve
as members of the Imperial Bancorp Salary Investment, Profit Sharing and
Employee Stock Ownership Plans Administrative Committee (the
"COMMITTEE"), which is a committee of the Board of Directors of the
Company. The Committee has the power, pursuant to the Imperial Bancorp
Salary Investment, Profit Sharing and Employee Stock Ownership Plans, to
direct the Plan Trustee as to the manner in which it shall vote the
shares of common stock held by the Trustee, other than allocated shares
held in the Employee Stock Ownership Plan. The Committee acts by a
majority vote. The Board also has the right to act as a committee of the
entirety. The shares held by the Trustee for others are not included in
the number of shares shown to be beneficially held by each of Messrs.
George L. Graziadio, Jr., Norman P. Creighton and H. Wayne Snavely as
each of them disclaims beneficial ownership of the shares so held.
(3) Pursuant to California law, personal property held in the name of a
married person may be community property as to which either spouse has
the power and ability to manage and control in its entirety. The Company
has no information pertaining to whether these shares are or are not
community property or whether any arrangement exists between the spouses
pertaining to voting or disposing of these shares and has thus assumed
that, in the absence of information to the contrary, married persons
share investment and voting power with their spouse.
(4) Holdings attributable to multiple parties have been adjusted to avoid
duplications.
(5) Includes 69,094 shares held by G. Louis Graziadio, III as
custodian/trustee for his minor children, which are reported in his
total, as to which Mr. Graziadio disclaims beneficial ownership.
(6) The Graziadio Investment Co. ("GIC") is a limited partnership of which
the Graziadio Investment Corp. ("GI CORP.") is the General Partner.
George L. Graziadio is the controlling shareholder of GI Corp. and a
Class A Limited Partner of GIC. The limited partners include the George
L. & Reva M. Graziadio Grandchildren's Trust No. 1 ("TRUST NO. 1") and
George & Reva Graziadio
34
<PAGE>
Trust ("TRUST"). G. Louis Graziadio, III is a trustee of Trust No. 1 and
trustee and beneficiary of the Trust and disclaims beneficial ownership
except as to his beneficial interest, 4.0581% of GIC.
(7) Includes 1,413,455 shares underlying outstanding options exercisable by
current officers and directors within 60 days of the date of this table.
</FN>
</TABLE>
35
<PAGE>
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the Company
and the Trust entered into the Registration Rights Agreement with the Initial
Purchasers, pursuant to which the Company and the Trust agreed, among other
things, to file and to use their best efforts to cause to be declared effective
by the Commission a registration statement with respect to the exchange of the
Old Capital Securities for capital securities with terms identical in all
material respects to the terms of the Old Capital Securities (except as
described below). A copy of the Registration Rights Agreement has been filed as
an exhibit to the Registration Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations
of the Company and the Trust under the Registration Rights Agreement. The form
and terms of the New Capital Securities are the same as the form and terms of
the Old Capital Securities, except that the New Capital Securities (i) have been
registered under the Securities Act and therefore will not be subject to certain
restrictions on transfer applicable to the Old Capital Securities and (ii) will
not provide for any increase in the distribution rate thereon. In that regard,
the Old Capital Securities provide, among other things, that, if the Exchange
Offer is not consummated by November 19, 1997 (subject to extension in certain
circumstances), the distribution rate borne by the Old Capital Securities will
increase by 0.25% per annum until the Exchange Offer is consummated. Upon
consummation of the Exchange Offer, holders of Old Capital Securities will not
be entitled to any increase in the distribution rate thereon or any further
registration rights under the Registration Rights Agreement, except under
limited circumstances. See "Risk Factors -- Consequences of a Failure to
Exchange Old Capital Securities" and "Description of the Capital Securities."
The Exchange Offer is not being made to, nor will the Trust or the
Company accept tenders for exchange from, holders of Old Capital Securities in
any jurisdiction in which the Exchange Offer or the acceptance thereof would not
be in compliance with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to
the Exchange Offer means any person in whose name the Old Capital Securities are
registered on the books of the Trust or any other person who has obtained a
properly completed bond power from the registered holder, or any participant in
The Depository Trust Company ("DTC") system whose name appears on a security
position listing as the holder of such Old Capital Securities and who desires to
deliver such Old Capital Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Company will exchange as soon as
practicable after the date hereof, the Old Guarantee for the New Guarantee and
all of the Old Junior Subordinated Debentures, of which $77,320,000 aggregate
principal amount is outstanding, for a like aggregate principal amount of the
New Junior Subordinated Debentures. The New Guarantee has been registered, and
New Junior Subordinated Debentures have been registered to the extent required
to be registered, under the Securities Act.
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TERMS OF EXCHANGE
The Trust hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $75,000,000 aggregate liquidation amount of New Capital
Securities for a like aggregate liquidation amount of Old Capital Securities
properly tendered on or prior to the Expiration Date and not properly withdrawn
in accordance with the procedures described below. The Trust will issue,
promptly after the Expiration Date, an aggregate liquidation amount of up to
$75,000,000 of New Capital Securities in exchange for a like aggregate
liquidation amount of outstanding Old Capital Securities tendered and accepted
in connection with the Exchange Offer. Holders may tender their Old Capital
Securities in whole or in part in a liquidation amount of not less than $100,000
or any integral multiple of $1,000 in excess thereof, provided that if any Old
Capital Securities are tendered in exchange in part, the untendered Liquidation
Amount must be $100,000 or any integral multiple of $l,000 in excess thereof.
The Exchange Offer is not conditioned upon any minimum liquidation amount
of Old Capital Securities being tendered. As of the date of this Prospectus,
$75,000,000 aggregate liquidation amount of the Old Capital Securities is
outstanding.
Holders of Old Capital Securities do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Old Capital Securities
which are not tendered for or are tendered but not accepted in connection with
the Exchange Offer will remain outstanding and be entitled to the benefits of
the Declaration, but will not be entitled to any further registration rights
under the Registration Rights Agreement, except under limited circumstances. See
"Risk Factors -- Consequences of a Failure to Exchange Old Capital Securities"
and "Description of the Capital Securities."
If any tendered Old Capital Securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Old Capital Securities
will be returned, without expense, to the tendering holder thereof promptly
after the Expiration Date.
Holders who tender Old Capital Securities in connection with the Exchange
Offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the Letter of Transmittal, transfer taxes with respect to
the exchange of Old Capital Securities in connection with the Exchange Offer.
The Company will pay all charges and expenses, other than certain applicable
taxes described below, in connection with the Exchange Offer. See " -- Fees and
Expenses."
NEITHER THE BOARD OF DIRECTORS OF THE COMPANY NOR ANY ISSUER TRUSTEE OF
THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO
WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN
AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES
MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE AMOUNT OF OLD CAPITAL SECURITIES TO TENDER AFTER
READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH THEIR
ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
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EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on
___________, 1997, unless the Exchange Offer is extended by the Company and the
Trust (in which case the term "Expiration Date" shall mean the latest date and
time to which the Exchange Offer is extended).
The Company and the Trust expressly reserve the right in their sole
discretion, subject to applicable law, at any time and from time to time, (i) to
delay the acceptance of the Old Capital Securities for exchange, (ii) to
terminate the Exchange Offer (whether or not any Old Capital Securities have
theretofore been accepted for exchange) if the Company and the Trust determine,
in their sole discretion, that any of the events or conditions referred to under
"-- Conditions to the Exchange Offer" have occurred or exist or have not been
satisfied, (iii) to extend the Expiration Date of the Exchange Offer and retain
all Old Capital Securities tendered pursuant to the Exchange Offer, subject,
however, to the right of holders of Old Capital Securities to withdraw their
tendered Old Capital Securities as described under "-- Withdrawal Rights," and
(iv) to waive any condition or otherwise amend the terms of the Exchange Offer
in any respect. If the Exchange Offer is amended in a manner determined by the
Company and the Trust to constitute a material change, or if the Company and the
Trust waive a material condition of the Exchange Offer, the Company and the
Trust will promptly disclose such amendment by means of an amended or
supplemented Prospectus that will be distributed to the registered holders of
the Old Capital Securities, and the Company and the Trust will extend the
Exchange Offer to the extent required by Rule 14e-l under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral (promptly confirmed in writing) or written notice
thereof to the Exchange Agent and by making a public announcement thereof, and
such announcement in the case of an extension will be made no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. Without limiting the manner in which the Company and
the Trust may choose to make any public announcement and subject to applicable
law, the Company and the Trust shall have no obligation to publish, advertise or
otherwise communicate any such public announcement other than by issuing a
release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF NEW CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Trust will exchange, and will issue to the Exchange Agent, New Capital
Securities for Old Capital Securities validly tendered and not withdrawn
(pursuant to the withdrawal rights described under "-- Withdrawal Rights")
promptly after the Expiration Date.
In all cases, delivery of New Capital Securities in exchange for Old
Capital Securities tendered and accepted for exchange pursuant to the Exchange
Offer will be made only after timely receipt by the Exchange Agent of (i) Old
Capital Securities or a book-entry confirmation of a book-entry transfer of Old
Capital Securities into the Exchange Agent's account at DTC, including an
Agent's Message if the tendering holder has not delivered a Letter of
Transmittal, (ii) the Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees or (in the
case of a book-entry transfer) an Agent's Message in lieu of the Letter of
Transmittal and (iii) any other documents required by the Letter of Transmittal.
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The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgement from the tendering
Participant (as defined herein), which acknowledgement states that such
Participant has received and agrees to be bound by, and make the representations
and warranties contained in, the Letter of Transmittal and that the Trust and
the Company may enforce such Letter of Transmittal against such Participant.
Subject to the terms and conditions of the Exchange Offer, the Company
and the Trust will be deemed to have accepted for exchange, and thereby
exchanged, Old Capital Securities validly tendered and not withdrawn as, if and
when the Trust gives oral (promptly confirmed in writing) or written notice to
the Exchange Agent of the Company's and the Trust's acceptance of such Old
Capital Securities for exchange pursuant to the Exchange Offer. The Exchange
Agent will act as agent for the Company and the Trust for the purpose of
receiving tenders of Old Capital Securities, Letters of Transmittal and related
documents, and as agent for tendering holders for the purpose of receiving Old
Capital Securities, Letters of Transmittal and related documents and
transmitting New Capital Securities to validly tendering holders. Such exchange
will be made promptly after the Expiration Date. If for any reason whatsoever,
acceptance for exchange or the exchange of any Old Capital Securities tendered
pursuant to the Exchange Offer is delayed (whether before or after the Company's
and the Trust's acceptance for exchange of Old Capital Securities) or the
Company and the Trust extend the Exchange Offer or are unable to accept for
exchange or exchange Old Capital Securities tendered pursuant to the Exchange
Offer, then, without prejudice to the Company's and the Trust's rights set forth
herein, the Exchange Agent may, nevertheless, on behalf of the Company and the
Trust and subject to Rule 14e- 1(c) under the Exchange Act, retain tendered Old
Capital Securities and such Old Capital Securities may not be withdrawn except
to the extent tendering holders are entitled to withdrawal rights as described
under "-- Withdrawal Rights."
Pursuant to the Letter of Transmittal or Agent's Message in lieu thereof,
a holder of Old Capital Securities will warrant and agree in the Letter of
Transmittal that it has full power and authority to tender, exchange, sell,
assign and transfer Old Capital Securities, that the Trust will acquire good,
marketable and unencumbered title to the tendered Old Capital Securities, free
and clear of all liens, restrictions, charges and encumbrances, and the Old
Capital Securities tendered for exchange are not subject to any adverse claims
or proxies. The holder also will warrant and agree that it will, upon request,
execute and deliver any additional documents deemed by the Company, the Trust or
the Exchange Agent to be necessary or desirable to complete the exchange, sale,
assignment, and transfer of the Old Capital Securities tendered pursuant to the
Exchange Offer.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for Old Capital
Securities to be validly tendered pursuant to the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees or (in the case of a book-entry tender) an
Agent's Message in lieu of the Letter of Transmittal and any other required
documents, must be received by the Exchange Agent at its address set forth under
"-- Exchange Agent," on or prior to the Expiration Date and (i) tendered Old
Capital Securities must be received by the Exchange Agent, or (ii)
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such Old Capital Securities must be tendered pursuant to the procedures for
book-entry transfer set forth below and a book-entry confirmation, including an
Agent's Message if the tendering holder has not delivered a Letter of
Transmittal, must be received by the Exchange Agent, in each case on or prior to
the Expiration Date, or (iii) the guaranteed delivery procedures set forth below
must be complied with.
If less than all of the Old Capital Securities are tendered, a tendering
holder should fill in the amount of Old Capital Securities being tendered in the
appropriate box on the Letter of Transmittal or so indicate in an Agent's
Message in lieu of the Letter of Transmittal. The entire amount of Old Capital
Securities delivered to the Exchange Agent will be deemed to have been tendered
unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book Entry Transfer. The Exchange Agent will establish an account with
respect to the Old Capital Securities at DTC for purposes of the Exchange Offer
within two business days after the date of this Prospectus. Any financial
institution that is a participant in DTC's book-entry transfer facility system
may make a book entry delivery of the Old Capital Securities by causing DTC to
transfer such Old Capital Securities into the Exchange Agent's account at DTC in
accordance with DTC's procedures for transfers. However, although delivery of
Old Capital Securities may be effected through book entry transfer into the
Exchange Agent's account at DTC, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message in lieu of a Letter of Transmittal, and any
other required documents, must in any case be delivered to and received by the
Exchange Agent at its address set forth under "-- Exchange Agent" on or prior to
the Expiration Date, or the guaranteed delivery procedure set forth below must
be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
Signature Guarantees. Certificates for the Old Capital Securities need
not be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (i) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the certificate
or (ii) such registered holder completes the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the Letter of Transmittal.
In the case of (i) or (ii) above, such certificates for Old Capital Securities
must be duly endorsed or accompanied by a properly executed bond power, with the
endorsement or signature on the bond power and on the Letter of Transmittal
guaranteed by a financial institution (including most banks, savings and loan
associations and brokerage houses) that is a participant in the Securities
Transfer Agents Medallion Program, the New York Stock Exchange Medallion Program
or the Stock Exchange Medallion Program (each, an "Eligible Institution"),
unless surrendered on behalf of such Eligible Institution. See Instruction 1 to
the Letter of Transmittal.
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Guaranteed Delivery. If a holder desires to tender Old Capital Securities
pursuant to the Exchange Offer and the certificates for such Old Capital
Securities are not immediately available or time will not permit all required
documents to reach the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
Old Capital Securities may nevertheless be tendered, provided that all of the
following guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible
Institution;
(ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form accompanying the Letter of
Transmittal, is received by the Exchange Agent, as provided below, on or
prior to Expiration Date; and
(iii) the certificates (or a book-entry confirmation)
representing all tendered Old Capital Securities, in proper form for
transfer, together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof or Agent's Message in lieu thereof),
with any required signature guarantees and any other documents required
by the Letter of Transmittal are received by the Exchange Agent within
three New York Stock Exchange trading days after the date of execution of
such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or
transmitted by facsimile or mail to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of New Capital
Securities in exchange for Old Capital Securities tendered and accepted for
exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of Old Capital Securities, or of a
book-entry confirmation with respect to such Old Capital Securities, and a
properly completed and duly executed Letter of Transmittal (or facsimile thereof
or an Agent's Message in lieu thereof), together with any required signature
guarantees and any other documents required by the Letter of Transmittal.
Accordingly, the delivery of New Capital Securities might not be made to all
tendering holders at the same time, and will depend upon when Old Capital
Securities, book-entry confirmations or an Agent's Message in lieu thereof with
respect to Old Capital Securities and other required documents are received by
the Exchange Agent.
The Company and the Trust's acceptance for exchange of Old Capital
Securities tendered pursuant to any of the procedures described above will
constitute a binding agreement among the tendering holder, the Company and the
Trust upon the terms and subject to the conditions of the Exchange Offer.
Determination Of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Old Capital Securities will be determined by the Company and the
Trust, in their sole discretion, whose determination shall be final and binding
on all parties. The Company and the Trust reserve the absolute right, in their
sole discretion, to reject any and all tenders determined by them not to be in
proper form or the acceptance of which, or exchange for, may, in the view of
counsel to the Company or the Trust, be unlawful. The Company and the Trust also
reserve the absolute right, subject to applicable law, to waive any of the
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conditions of the Exchange Offer as set forth under "-- Conditions to the
Exchange Offer" or any condition or irregularity in any tender of Old Capital
Securities of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders.
The Company's and the Trust's interpretation of the terms and conditions
of the Exchange Offer (including the Letter of Transmittal and the instructions
thereto) will be final and binding. No tender of Old Capital Securities will be
deemed to have been validly made until all irregularities with respect to such
tender have been cured or waived. Neither the Company, the Trust, any affiliates
or assigns of the Company or the Trust, the Exchange Agent nor any other person
shall be under any duty to give any notification of any irregularities in
tenders or incur any liability for failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney
or any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the Trust,
proper evidence satisfactory to the Company and the Trust, in their sole
discretion, of such person's authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the Exchange Offer.
RESALES OF NEW CAPITAL SECURITIES
Based on existing interpretations by the staff of the Commission set
forth in several no-action letters to third parties, and subject to the
immediately following sentence, the Company and the Trust believe that New
Securities issued pursuant to the Exchange Offer in exchange for Old Securities
may be offered for resale, resold and otherwise transferred by a holder thereof
without further compliance with the registration and prospectus delivery
requirements of the Securities Act, provided that such New Securities are
acquired in the ordinary course of such holder's business and that such holder
is not participating, and has no arrangement or understanding with any person to
participate, in a distribution (within the meaning of the Securities Act) of
such New Securities. However, any holder of Old Capital Securities who is an
"affiliate" of either the Company or the Trust, a broker-dealer that acquires
the Old Capital Securities in a transaction other than a part of its
market-making or other trading activities or other holder who intends to
participate in the Exchange Offer for the purpose of distributing New Capital
Securities (i) will not be able to rely on the interpretations by the staff of
the Commission set forth in the above-mentioned interpretive letters, (ii) will
not be able to tender such Old Capital Securities in the Exchange Offer, and
(iii) must comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any sale or other transfer of such Old
Capital Securities unless such sale is made pursuant to an exemption from such
requirements. Neither the Company nor the Trust sought its own no-action letter
and there can be no assurance that the staff of the Commission would make a
similar determination with respect to the Exchange Offer as it has in such
no-action letters to third parties.
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Each holder of Old Capital Securities (other than a broker-dealer) who
wishes to exchange Old Capital Securities for New Capital Securities in the
Exchange Offer will be required to represent that (i) it is not an "affiliate"
of the Company or the Trust, (ii) any New Capital Securities to be received by
it are being acquired in the ordinary course of its business and (iii) it has no
arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of such New Capital Securities. The
Letter of Transmittal contains the foregoing representations. In addition, the
Company and the Trust may require such holder, as a condition to such holder's
eligibility to participate in the Exchange Offer, to furnish to the Company and
the Trust (or an agent thereof) in writing information as to the number of
"beneficial owners" (within the meaning of Rule 13d-3 under the Exchange Act) on
behalf of whom such holder holds the Old Capital Securities to be exchanged in
the Exchange Offer. Each Exchanging Dealer will be deemed to have acknowledged
by execution of the Letter of Transmittal or delivery of an Agent's Message that
it acquired the Old Capital Securities for its own account as the result of
market-making activities or other trading activities and must agree that it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Capital Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, an
Exchanging Dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. Based on the position taken by the staff of
the Commission in the no-action letters referred to above, the Company and the
Trust believe that Exchanging Dealers may fulfill their prospectus delivery
requirements with respect to the New Capital Securities received upon exchange
of such Old Capital Securities (other than Old Capital Securities which
represent an unsold allotment from the original sale of the Old Capital
Securities) with a prospectus meeting the requirements of the Securities Act,
which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such New Capital Securities. Subject to certain provisions set forth in the
Registration Rights Agreement and to the limitations set out herein, the Company
and the Trust have agreed that this Prospectus, as it may be amended or
supplemented from time to time, may be used by an Exchanging Dealer in
connection with resales of such New Capital Securities for a period ending
ninety days after the Expiration Date (or longer, if required by the
Registration Rights Agreement). See "Plan of Distribution." Any person,
including any Exchanging Dealer, who is an "affiliate" of the Company or the
Trust may not rely on such no-action letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
In that regard, each Exchanging Dealer who surrenders Old Capital
Securities pursuant to the Exchange Offer will be deemed to have agreed, by
execution of the Letter of Transmittal or delivery of an Agent's Message in lieu
thereof, that, upon receipt of notice from the Company or the Trust of the
occurrence of any event or the discovery of any fact which makes any statement
contained or incorporated by reference in this Prospectus untrue in any material
respect or which causes this Prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
herein, in light of the circumstances under which they were made, not misleading
or of the occurrence of certain other events specified in the Registration
Rights Agreement, such Exchanging Dealer will suspend the sale of New Securities
pursuant to this Prospectus until the Company or the Trust has amended or
supplemented this Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented Prospectus to such Exchanging
Dealer or the Company or the Trust has given notice that the sale of the New
Securities may be resumed, as the case may be.
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WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at its address set forth under "-- Exchange Agent" on or prior to
the Expiration Date. Any such notice of withdrawal must specify the name of the
person who tendered the Old Capital Securities to be withdrawn, the aggregate
principal amount of Old Capital Securities to be withdrawn, and (if certificates
for such Old Capital Securities have been tendered) the name of the registered
holder of the Old Capital Securities as set forth on the Old Capital Securities,
if different from that of the person who tendered such Old Capital Securities.
If Old Capital Securities have been delivered or otherwise identified to the
Exchange Agent, then prior to the physical release of such Old Capital
Securities, the tendering holder must submit the certificate numbers shown on
the particular Old Capital Securities to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, except in
the case of Old Capital Securities tendered for the account of an Eligible
Institution. If Old Capital Securities have been tendered pursuant to the
procedures for book-entry transfer set forth in "-- Procedures for Tendering Old
Capital Securities," the notice of withdrawal must specify the name and number
of the account at DTC to be credited with the withdrawal of Old Capital
Securities, in which case a notice of withdrawal will be effective if delivered
to the Exchange Agent by written or facsimile transmission. Withdrawals of
tenders of Old Capital Securities may not be rescinded. Old Capital Securities
properly withdrawn will not be deemed validly tendered for purposes of the
Exchange Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described above under "--
Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company and the
Trust, in their sole discretion, whose determination shall be final and binding
on all parties. Neither the Company, the Trust, any affiliates or assigns of the
Company or the Trust, the Exchange Agent nor any other person shall be under any
duty to give any notification of any irregularities in any notice of withdrawal
or incur any liability for failure to give any such notification. Any Old
Capital Securities which have been tendered but which are withdrawn will be
returned to the holder thereof promptly after withdrawal.
DISTRIBUTIONS ON NEW CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated distributions on such Old
Capital Securities for any period from and after the last Distribution Date with
respect to such Old Capital Securities prior to the original issue date of the
New Capital Securities or, if no such distributions have been made, will not
receive any accumulated distributions on such Old Capital Securities, and will
be deemed to have waived the right to receive any distributions on such Old
Capital Securities accumulated from and after such Distribution Date or, if no
such distributions have been made, from and after April 23, 1997.
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CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Company and the Trust will not be required
to accept for exchange, or to exchange, any Old Capital Securities for any New
Capital Securities, and, as described below, may terminate the Exchange Offer
(whether or not any Old Capital Securities have theretofore been accepted for
exchange) or may waive any conditions to or amend the Exchange Offer, if any of
the following conditions have occurred or exists or have not been satisfied:
(a) there shall occur a change in the current interpretation
by the staff of the Commission which permits the New Capital Securities
issued pursuant to the Exchange Offer in exchange for Old Capital
Securities to be offered for resale, resold and otherwise transferred by
holders thereof (other than broker-dealers and any such holder which is
an "affiliate" of the Company or the Trust within the meaning of Rule 405
under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
New Capital Securities are acquired in the ordinary course of such
holders' business and such holders have no arrangement or understanding
with any person to participate in the distribution of such New Capital
Securities;
(b) any action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency or body
with respect to the Exchange Offer which, in the Company's and the
Trust's judgment, would reasonably be expected to impair the ability of
the Trust or the Company to proceed with the Exchange Offer;
(c) any law, statute, rule or regulation shall have been
adopted or enacted which, in the Company's and the Trust's judgment,
would reasonably be expected to impair the ability of the Trust or the
Company to proceed with the Exchange Offer;
(d) a Tax Event shall have occurred that, in the Company's and
the Trust's judgment, could have an adverse effect on the Company or the
Trust if the New Securities were issued to the holders of Old Securities;
or
(e) a stop order shall have been issued by the Commission or
any state securities authority suspending the effectiveness of the
Registration Statement or proceedings shall have been initiated or, to
the knowledge of the Company or the Trust, threatened for that purpose or
that any governmental approval has not been obtained, which approval the
Company and the Trust shall, in their sole discretion, deem necessary for
the consummation of the Exchange Offer as contemplated hereby.
If the Company and the Trust determine in their sole discretion that any
of the foregoing events or conditions has occurred or exists or has not been
satisfied, the Company and the Trust may, subject to applicable law, terminate
the Exchange Offer (whether or not any Old Capital Securities have theretofore
been accepted for exchange) or may waive any such condition or otherwise amend
the terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, the Company and the Trust
will promptly disclose such waiver by means of an amended or supplemented
Prospectus that will be distributed to the registered holders of the Old Capital
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Securities, and the Company and the Trust will extend the Exchange Offer to the
extent required by Rule 14e-1 under the Exchange Act.
The Exchange Offer is not conditioned on any minimum amount of Old
Capital Securities being tendered for exchange.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as Exchange Agent for the
Exchange Offer. Delivery of the Letters of Transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed to
the Exchange Agent as follows:
The Chase Manhattan Bank
55 Water Street
Room 234, North Building
New York, New York 10041
Attention: Carlos Esteves
Confirm by Telephone:
Carlos Esteves (212) 638-0828
Facsimile Transmissions:
Carlos Esteves (212) 638-7375
(212) 344-9367
Delivery to other than the above address or facsimile number
will not constitute a valid delivery.
FEES AND EXPENSES
The Company has agreed to pay the Exchange Agent reasonable and customary
fees for its services and will reimburse it for its reasonable out-of-pocket
expenses in connection therewith. The Company will also pay brokerage houses and
other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus and related documents
to the beneficial owners of Old Capital Securities, and in handling or tendering
for their customers.
Holders who tender their Old Capital Securities for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however, New
Capital Securities are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other than the exchange
of Old Capital Securities in connection with the Exchange Offer, then the amount
of any such transfer taxes (whether imposed on the registered holder or any
other persons) will be payable by the tendering holder. If
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satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Neither the Company nor the Trust will make any payment to brokers,
dealers or others soliciting acceptances of the Exchange Offer.
THE TRUST
The Trust is a statutory business trust created under Delaware law
pursuant to (i) a declaration of trust, dated as of April 8, 1997 executed by
the Company, as Sponsor, the Delaware Trustee and the Property Trustee named
therein (the "INITIAL DECLARATION"), and (ii) the filing of a certificate of
trust with the Secretary of State of the State of Delaware on April 8, 1997. The
Initial Declaration was replaced by an amended and restated declaration of trust
entered into on April 23, 1997 by the Company, as Sponsor, the Issuer Trustees
(as defined herein) and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (the "DECLARATION"). The Trust exists for
the exclusive purposes of (i) issuing and selling the Trust Securities, which
represent undivided beneficial interests in the assets of the Trust, (ii)
investing the gross proceeds from the sale of the Trust Securities in the Junior
Subordinated Debentures and (iii) engaging in only those other activities
necessary, advisable or incidental thereto, including engaging in the Exchange
Offer. Accordingly, the Junior Subordinated Debentures are the sole assets of
the Trust and payments under the Junior Subordinated Debentures will be the sole
revenues of the Trust. All of the Common Securities are owned directly by the
Company. The Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Capital Securities, except that upon the occurrence
and during the continuance of an Event of Default, the rights of the Company as
holder of the Common Securities to payments in respect of Distributions and
payments upon liquidation, redemption or otherwise will be subordinated and rank
junior to the rights of the holders of the Capital Securities. See "Description
of Capital Securities -- Subordination of Common Securities." The Company will
acquire Common Securities in a Liquidation Amount equal to at least 3% of the
total capital of the Trust. The Trust has a term of 31 years, but may dissolve
earlier as provided in the Declaration. The Trust's business and affairs will be
conducted by trustees (the "ISSUER TRUSTEES") appointed by the Company as the
direct holder of the Common Securities. The Issuer Trustees are The Chase
Manhattan Bank as the Property Trustee (the "PROPERTY TRUSTEE"), Chase Manhattan
Bank Delaware as the Delaware Trustee (the "DELAWARE TRUSTEE"), and two
individual trustees (the "ADMINISTRATIVE TRUSTEES"). The Chase Manhattan Bank,
as Property Trustee, acts as sole indenture trustee under the Declaration. The
Chase Manhattan Bank also acts as indenture trustee under the Guarantee and the
Indenture. See "Description of the Guarantee" and "Description of Junior
Subordinated Debentures." The holder of the Common Securities or, if an Event of
Default under the Declaration has occurred and is continuing, the holders of a
majority in Liquidation Amount of the Capital Securities, will be entitled to
appoint, remove or replace the Property Trustee and/or the Delaware Trustee. In
no event will the holders of the Capital Securities have the right to vote to
appoint, remove or replace the Administrative Trustees; such voting rights will
be vested exclusively in the holder of the Common Securities. The duties and
obligations of each Issuer Trustee are governed by the Declaration. The Company
will pay directly all fees, expenses, debts and obligations (other than the
Trust Securities) related to the Trust and the offering of the Capital
Securities, including all ongoing costs, expenses and liabilities of the Trust.
The principal executive office of the Trust is Imperial Capital Trust I, c/o
Imperial Bancorp, 9920 South La Cienega Boulevard,
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Inglewood, California 90301 Attention: Chief Executive Officer. Under the
Declaration, all parties to the Declaration have agreed, and the Holders of the
Capital Securities upon purchase of their Capital Securities will be deemed to
have agreed, for United States income tax purposes, to treat the Trust as a
grantor trust, the Junior Subordinated Debentures as indebtedness and the
Capital Securities as evidence of indirect beneficial ownership in the Junior
Subordinated Debentures.
DESCRIPTION OF CAPITAL SECURITIES
The Capital Securities represent preferred undivided beneficial interests
in the assets of the Trust and the holders thereof will be entitled to a
preference over the Common Securities in certain circumstances with respect to
Distributions and amounts payable on redemption of the Trust Securities or
liquidation of the Trust. See "-- Subordination of Common Securities" below. The
Declaration has been qualified under the Trust Indenture Act of 1939, as amended
(the "TRUST INDENTURE ACT"). The Declaration incorporates certain provisions of
the Trust Indenture Act and is subject to and governed by the Trust Indenture
Act. The following description does not purport to be complete and is subject
to, and is qualified in its entirety by reference to, the Trust Indenture Act
and the Declaration (a copy of which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part).
Certain capitalized terms used herein are defined in the Declaration.
GENERAL
The Old Capital Securities and the New Capital Securities are limited to
$75,000,000 aggregate Liquidation Amount at any one time outstanding. The
Capital Securities rank pari passu, and payments will be made thereon pro rata,
with the Common Securities except as described under "-- Subordination of Common
Securities" below. Legal title to the Junior Subordinated Debentures is held by
the Property Trustee in trust for the benefit of the holders of the Capital
Securities and the Common Securities. The Guarantee does not guarantee payment
of Distributions or amounts payable on redemption of the Capital Securities or
liquidation of the Trust when the Trust does not have funds on hand legally
available for such payments. See "Description of the Guarantee."
DISTRIBUTIONS
Distributions on the Capital Securities are cumulative from April 23,
1997, the date of original issuance of the Old Capital Securities (the "ISSUE
DATE"), and will be payable semi-annually in arrears on June 30 and December 31
of each year, commencing June 30, 1997, at the annual rate of 9.98% of the
Liquidation Amount to the holders of the Capital Securities on the relevant
record dates. The record dates are the fifteenth day of the month preceding the
month in which the relevant Distribution Date (as defined herein) falls. The
amount of Distributions payable for any period will be computed on the basis of
a 360-day year of twelve 30-day months and, for any period of less than a full
calendar month, the number of days elapsed in such month. In the event that any
date on which Distributions are payable on the Capital Securities is not a
Business Day (as defined herein), payment of the Distributions payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect to any such delay), with the same force
and effect as if made on the date such payment was originally payable (each date
on which Distributions are payable in accordance with the foregoing, a
"DISTRIBUTION DATE"). A "BUSINESS DAY" shall mean any day other
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than a Saturday or a Sunday, or a day on which banking institutions in New York,
New York are authorized or required by law or executive order to close.
So long as no Debenture Event of Default shall have occurred and be
continuing, the Company has the right under the Indenture to elect to defer the
payment of interest on the Junior Subordinated Debentures at any time and from
time to time for a period not exceeding 10 consecutive semi-annual periods with
respect to each Extension Period, provided that no Extension Period may end on a
day other than an interest payment date for the Junior Subordinated Debentures
or extend beyond the Stated Maturity Date. Upon any such election, semi-annual
Distributions on the Capital Securities will be deferred by the Trust during
such Extension Period. Distributions to which holders of the Capital Securities
are entitled during any such Extension Period will accumulate additional
Distributions thereon at the rate per annum of 9.98% thereof, compounded
semi-annually from the relevant Distribution Date. The term "DISTRIBUTIONS," as
used herein, shall include any such additional Distributions.
During any such Extension Period, the Company may extend such Extension
Period, provided that such extension does not cause such Extension Period to
exceed 10 consecutive semi-annual periods or to extend beyond the Stated
Maturity Date. Upon the termination of any such Extension Period and the payment
of all amounts then due, and subject to the foregoing limitations, the Company
may elect to begin a new Extension Period. The Company must give the Property
Trustee, the Administrative Trustees and the Debenture Trustee notice of its
election of any Extension Period or any extension thereof at least five Business
Days prior to the earlier of (i) the date the Distributions on the Capital
Securities would have been payable except for the election to begin or extend
such Extension Period and (ii) the date the Administrative Trustees are required
to give notice to any securities exchange or to holders of the Capital
Securities of the record date or the date such Distributions are payable, but in
any event not less than five Business Days prior to such record date. There is
no limitation on the number of times that the Company may elect to begin an
Extension Period. See "Description of Junior Subordinated Debentures -- Option
to Extend Interest Payment Period" and "Certain Federal Income Tax
Considerations -- Interest, Original Issue Discount, Premium and Market
Discount."
During any such Extension Period, the Company may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock (which
includes common and preferred stock) or (ii) make any payment of principal of or
premium, if any, or interest on or repay, repurchase or redeem any debt
securities of the Company (including Other Debentures) that rank pari passu with
or junior in right of payment to the Junior Subordinated Debentures or (iii)
make any guarantee payments with respect to any guarantee by the Company of any
securities of any subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Junior
Subordinated Debentures (other than (a) dividends or distributions in shares of,
or options, warrants or rights to subscribe for or purchase shares of, common
stock of the Company, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Guarantee, (d) as a direct result of,
and only to the extent required in order to avoid the issuance of fractional
shares of capital stock following, a reclassification of the Company's capital
stock or the exchange or conversion of one class, or series of the Company's
capital stock for another class or series of the Company's capital stock, (e)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security
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being converted or exchanged, and (f) purchases of common stock related to the
issuance of common stock or rights under any of the Company's benefit plans for
its directors, officers or employees or any of the Company's dividend
reinvestment plans).
Although the Company may in the future exercise its option to defer
payments of interest on the Junior Subordinated Debentures, the Company has no
such current intention. See "Risk Factors -- Option to Extend Interest Payment
Period; Tax Considerations."
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debentures. See "Description of Junior Subordinated Debentures -- General." If
the Company does not make interest payments on the Junior Subordinated
Debentures, the Property Trustee will not have funds available to pay
Distributions on the Capital Securities. The payment of Distributions (if and to
the extent the Trust has funds on hand legally available for the payment of such
Distributions) will be guaranteed by the Company on a limited basis as set forth
herein under "Description of the Guarantee."
REDEMPTION
Upon the repayment on the Stated Maturity Date or prepayment prior to the
Stated Maturity Date of the Junior Subordinated Debentures, the proceeds from
such repayment or prepayment shall be applied by the Property Trustee to redeem
a Like Amount (as defined herein) of the Trust Securities, upon not less than 30
nor more than 60 days' notice of a date of redemption (the "REDEMPTION DATE") at
the applicable Redemption Price, which shall be equal to (i) in the case of the
repayment of the Junior Subordinated Debentures on the Stated Maturity Date, the
Maturity Redemption Price (equal to the principal of and accrued and unpaid
interest on the Junior Subordinated Debentures), (ii) in the case of the
optional prepayment of the Junior Subordinated Debentures before the Initial
Optional Prepayment Date upon the occurrence and continuation of a Special
Event, the Special Event Redemption Price (equal to the Special Event Prepayment
Price in respect of the Junior Subordinated Debentures) and (iii) in the case of
the optional prepayment of the Junior Subordinated Debentures other than as
contemplated in clause (ii) above, the Optional Redemption Price (equal to the
Optional Prepayment Price in respect of the Junior Subordinated Debentures). See
"Description of Junior Subordinated Debentures -- Optional Prepayment" and "--
Special Event Prepayment," and "Certain Federal Income Tax Considerations --
Sale or Redemption of Capital Securities."
"LIKE AMOUNT" means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Junior Subordinated Debentures to be paid in accordance with their
terms and (ii) with respect to a distribution of Junior Subordinated Debentures
upon the liquidation of the Trust, Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
holder to whom such Junior Subordinated Debentures are distributed.
The Company has the option to prepay the Junior Subordinated Debentures,
(i) in whole or in part, on or after the Initial Optional Prepayment Date, at
the applicable Optional Prepayment Price and (ii) in whole but not in part, at
any time before the Initial Optional Prepayment Date, upon the occurrence of a
Special Event, at the Special Event Prepayment Price, in each case subject to
receipt of prior approval
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by the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES
The Company has the right at any time to dissolve the Trust and cause the
Junior Subordinated Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust, subject to satisfaction of liabilities
to creditors of the Trust as provided by applicable law. Such right is subject
to (i) the Company having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities and
(ii) the prior approval of the Federal Reserve if then required under applicable
capital guidelines or policies of the Federal Reserve.
The Trust shall automatically dissolve upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Company or the
Trust; (ii) the distribution of a Like Amount of the Junior Subordinated
Debentures to the holders of the Trust Securities, if the Company, as Sponsor,
has given written direction to the Property Trustee to dissolve the Trust (which
direction is optional and, except as described above, wholly within the
discretion of the Company, as Sponsor); (iii) redemption of all of the Trust
Securities as described under "-- Redemption" above; (iv) expiration of the term
of the Trust; and (v) the entry of an order for the dissolution of the Trust by
a court of competent jurisdiction.
If a dissolution occurs as described in clause (i), (ii), (iv), or (v) of
the preceding paragraph, the Trust shall be liquidated by the Administrative
Trustees as expeditiously as the Administrative Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to the holders of the Trust Securities a
Like Amount of the Junior Subordinated Debentures, in which event such holders
will be entitled to receive out of the assets of the Trust legally available for
distribution to holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the aggregate of the
Liquidation Amount plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "LIQUIDATION DISTRIBUTION"). If the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets on hand legally available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on the
Capital Securities and the Common Securities shall be paid on a pro rata basis,
except that if a Debenture Event of Default has occurred and is continuing, the
Capital Securities shall have a priority over the Common Securities. See "--
Subordination of Common Securities" below.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debentures to holders of the Trust Securities, (i) the Trust
Securities will no longer be deemed to be outstanding, (ii) each registered
global certificate, if any, representing Trust Securities and held by DTC or its
nominee will receive a registered global certificate or certificates
representing the Junior Subordinated Debentures to be delivered upon such
distribution and (iii) any certificates representing Trust Securities not held
by DTC or its nominee will be deemed to represent Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of such Trust
Securities, and bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities until
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such certificates are presented to the Administrative Trustees or their agent
for cancellation, whereupon the Company will issue to such holder, and the
Debenture Trustee will authenticate, a certificate representing such Junior
Subordinated Debentures.
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debentures that may be distributed in
exchange for the Trust Securities if a dissolution and liquidation of the Trust
were to occur. Accordingly, the Capital Securities that an investor may hold, or
the Junior Subordinated Debentures that the investor may receive on dissolution
and liquidation of the Trust, may trade at a discount to the price that the
investor paid to purchase the Capital Securities.
REDEMPTION PROCEDURES
If applicable, Trust Securities shall be redeemed at the applicable
Redemption Price with the proceeds from the contemporaneous repayment or
prepayment of the Junior Subordinated Debentures. Any redemption of Trust
Securities shall be made and the applicable Redemption Price shall be payable on
the Redemption Date only to the extent that the Trust has funds legally
available for the payment of such applicable Redemption Price. See also "--
Subordination of Common Securities" below.
If the Trust gives a notice of redemption in respect of the Capital
Securities, then, by 12:00 noon, New York City time, on the Redemption Date, to
the extent funds are legally available, with respect to the Capital Securities
held by DTC or its nominees, the Property Trustee will pay or cause the Paying
Agent (as defined herein) to pay the Redemption Price to DTC. See "-- Form,
Denomination, Book-Entry Procedures and Transfer" below. With respect to the
Capital Securities held in certificated form, the Property Trustee, to the
extent funds are legally available, will give irrevocable instructions and
authority to the Paying Agent and will irrevocably deposit with the Paying Agent
for the Capital Securities funds sufficient to pay or cause the Paying Agent to
pay the applicable Redemption Price to the holders thereof upon surrender of
their certificates evidencing the Capital Securities. See "-- Payment and Paying
Agency" below. Distributions payable on or prior to the Redemption Date shall be
payable to the holders of such Capital Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have been
given and funds deposited with the Property Trustee to pay the Redemption Price
for the Capital Securities called for redemption, then all rights of the holders
of such Capital Securities will cease, except the right of the holders of such
Capital Securities to receive the applicable Redemption Price, but without
interest on such Redemption Price, and such Capital Securities will cease to be
outstanding. In the event that any Redemption Date is not a Business Day, then
the applicable Redemption Price payable on such date will be paid on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay). In the event that payment of the applicable
Redemption Price is improperly withheld or refused and not paid either by the
Trust or by the Company pursuant to the Guarantee as described under
"Description of the Guarantee," (i) Distributions on Capital Securities called
for redemption will accumulate on the Redemption Price at the then applicable
rate, from the Redemption Date originally established by the Trust to the date
such applicable Redemption. Price is actually paid, and (ii) the actual payment
date will be the Redemption Date for purposes of calculating the applicable
Redemption Price.
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Subject to applicable law (including, without limitation, United States
federal securities law and the regulations of the Federal Reserve) the Company
or its subsidiaries may at any time and from time to time purchase outstanding
Capital Securities by tender, in the open market or by private agreement.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days prior to the Redemption Date to each holder of Trust Securities at
its registered address. Unless the Company defaults in payment of the applicable
Prepayment Price on, or in the repayment of, the Junior Subordinated Debentures,
on and after the Redemption Date Distributions will cease to accrue on the Trust
Securities called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and the Common Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Capital Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution on, or applicable Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of the Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions on all of the outstanding
Capital Securities for all Distribution periods terminating on or prior thereto
or, in the case of Capital Securities called for redemption on a Redemption Date
on or prior thereto, the full amount of the Redemption Price therefor, shall
have been made or provided for, and all funds available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions on,
or Redemption Price of, the Capital Securities then due and payable.
In the case of any Event of Default, the Company as holder of the Common
Securities will be deemed to have waived any right to act with respect to such
Event of Default until the effect of such Event of Default shall have been
cured, waived or otherwise eliminated. Until any such Event of Default has been
so cured, waived or otherwise eliminated, the Property Trustee shall act solely
on behalf of the holders of the Capital Securities and not on behalf of the
Company as holder of the Common Securities, and only the holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
EVENTS OF DEFAULT; NOTICE
The occurrence of a Debenture Event of Default (see "Description of
Junior Subordinated Debentures -- Debenture Events of Default") constitutes an
"EVENT OF DEFAULT" under the Declaration.
Within 10 business days after the occurrence of any Event of Default
actually known to the Company, the Company shall transmit notice of such Event
of Default to the holders of the Capital Securities, the Administrative Trustees
and the Property Trustee, unless such Event of Default shall have been cured or
waived. The Company, as Sponsor, and the Administrative Trustees are required to
file annually with the Property Trustee a certificate as to whether or not they
are in compliance with all the conditions and covenants applicable to them under
the Declaration.
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If a Debenture Event of Default has occurred and is continuing, the
Capital Securities shall have a preference over the Common Securities as
described under "-- Liquidation of the Trust and Distribution of Junior
Subordinated Debentures" and "-- Subordination of Common Securities" above.
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by the holder of the
Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at such
time by the holders of a majority in Liquidation Amount of the outstanding
Capital Securities. In no event will the holders of the Capital Securities have
the right to vote to appoint, remove or replace the Administrative Trustees,
which voting rights are vested exclusively in the Company as the holder of the
Common Securities. No resignation or removal of an Issuer Trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor Trustee in accordance with the provisions of the
Declaration.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any entity succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under the
Declaration, provided such entity shall be otherwise qualified and eligible.
MERGERS, CONVERSIONS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge or convert with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other Person,
except as described below or as otherwise described in "-- Liquidation of the
Trust and Distribution of Junior Subordinated Debentures." The Trust may, at the
request of the Company, as Sponsor, with the consent of the Administrative
Trustees but without the consent of the holders of the Capital Securities, merge
or convert with or into, consolidate, amalgamate, or be replaced by or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "SUCCESSOR SECURITIES") so long as the
Successor Securities rank the same as the Capital Securities rank in priority
with respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Company expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee with
respect to the Junior Subordinated Debentures, (iii) the Successor Securities
are listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other organization on which the
Capital Securities are then listed or quoted, if any, (iv) such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Capital Securities (including any Successor Securities)
to be downgraded by any nationally recognized statistical rating organization,
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(v) such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Capital Securities (including any Successor
Securities) in any material respect (other than any dilution of such holders'
interests in the new entity), (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
conversion, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Company has received an opinion from independent counsel to the Trust
experienced in such matters to the effect that (a) such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Capital Securities (including any Successor Securities) in any material respect
(other than any dilution of such holders' interests in the new entity), and (b)
following such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity will
be required to register as an investment company under the Investment Company
Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), and (viii) the Company
or any permitted successor or assignee owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Trust Securities, consolidate,
amalgamate, merge or convert with or into, or be replaced by or convey, transfer
or lease its properties and assets as an entirety or substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge or convert with or into, or replace it if such consolidation,
amalgamation, merger, conversion, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity not to be classified as a grantor
trust for United States federal income tax purposes. The Property Trustee is
required pursuant to the terms of the Indenture to exchange, as a part of the
Exchange Offer, the Old Junior Subordinated Debentures for the New Junior
Subordinated Debentures, which will have terms identical to the Old Junior
Subordinated Debentures except for the transfer restrictions under the
Securities Act and the provision for an increase in the interest rate thereon
under certain circumstances.
See "Exchange Offer."
VOTING RIGHTS; AMENDMENT OF THE DECLARATION
Except as provided below and under "-- Mergers, Conversions,
Consolidations, Amalgamations or Replacements of the Trust" above and
"Description of the Guarantee -- Amendments and Assignment" and as otherwise
required by law and the Declaration, the holders of the Capital Securities have
no voting rights.
The Declaration may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Securities (i) to cure any ambiguity, correct or supplement
any provisions in the Declaration that may be inconsistent with any other
provision, or to make any other provisions with respect to matters or questions
arising under the Declaration, which shall not be inconsistent with the other
provisions of the Declaration, (ii) to modify, eliminate or add to any
provisions of the Declaration to such extent as shall be necessary to ensure
that the Trust will be classified for United States federal income tax purposes
as a grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act, or (iii) to modify, eliminate or add
to any provision of the Declaration to such extent as shall be necessary to
enable the Trust and the Company to conduct an Exchange Offer in the manner
contemplated by the Registration Rights Agreement;
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provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of the holders of the
Trust Securities. Any amendments of the Declaration pursuant to the foregoing
shall become effective when notice thereof is given to the holders of the Trust
Securities. The Declaration may be amended by the Issuer Trustees and the
Company (i) with the consent of holders representing a majority (based upon
Liquidation Amount) of the outstanding Trust Securities, and (ii) upon receipt
by the Issuer Trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not affect the Trust's status as a grantor
trust for United States federal income tax purposes or the Trust's exemption
from status as an "investment company" under the Investment Company Act,
provided that, without the consent of each holder of Trust Securities, the
Declaration may not be amended to (i) change the amount or timing of any
Distribution or other payment on the Trust Securities or otherwise adversely
affect the amount of any Distribution or other payment required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict the
right of a holder of Trust Securities to institute suit for the enforcement of
any such payment on or after such date.
So long as any Junior Subordinated Debentures are held by the Property
Trustee, the Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
the Junior Subordinated Debentures, (ii) waive certain past defaults under the
Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Junior Subordinated
Debentures or (iv) consent to any amendment, modification or termination of the
Indenture or the Junior Subordinated Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the holders of
a majority in Liquidation Amount of all outstanding Capital Securities;
provided, however, that where a consent under the Indenture would require the
consent of each holder of Junior Subordinated Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior approval
of each holder of the Capital Securities. The Property Trustee shall not revoke
any action previously authorized or approved by a vote of the holders of the
Capital Securities except by subsequent vote of such holders. The Property
Trustee shall notify each holder of Capital Securities of any notice of default
with respect to the Junior Subordinated Debentures. In addition to obtaining the
foregoing approvals of such holders of the Capital Securities, prior to taking
any of the foregoing actions, the Issuer Trustees shall obtain an opinion of
counsel experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation for United States federal
income tax purposes on account of such action.
Any required approval of holders of Capital Securities may be given at a
meeting of such holders convened for such purpose or pursuant to written
consent. The Property Trustee will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be given to each
holder of record of Capital Securities in the manner set forth in the
Declaration.
No vote or consent of the holders of Capital Securities will be required
for the Trust to redeem and cancel the Capital Securities in accordance with the
Declaration.
Notwithstanding that holders of the Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Company or any
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affiliate of the Company shall, for purposes of such vote or consent, be treated
as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The description of book-entry procedures in this Prospectus includes
summaries of certain rules and operating procedures of DTC that affect transfers
of interests in the global certificate or certificates issued in connection with
sales of Capital Securities. Except as described in the next paragraph, the
Capital Securities will be issued only as fully registered securities registered
in the name of Cede & Co. (as nominee for DTC). One or more fully registered
global Capital Security certificates (the "GLOBAL CAPITAL SECURITIES") will be
issued, representing, in the aggregate, the New Capital Securities, and will be
deposited with DTC.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in the Global Capital
Securities.
The New Capital Securities will be in blocks having a Liquidation Amount
of not less than $100,000 (100 New Capital Securities) and may be transferred or
exchanged in the manner and at the offices described below.
Depositary Procedures
DTC has advised the Trust and the Company that DTC is a limited-purpose
trust company created to hold securities for its participating organizations
(collectively, the "PARTICIPANTS") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes in accounts of its Participants. The Participants
include securities brokers and dealers (including the Initial Purchasers),
banks, trust companies, clearing corporations and certain other organizations.
Access to DTC's system is also available to other entities such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "INDIRECT PARTICIPANTS"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interest and transfer of ownership interest
of each actual purchaser of each security held by or on behalf of DTC are
recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Company that, pursuant to
procedures established by it, (i) upon deposit of the Global Capital Securities,
DTC will credit the accounts of Participants designated by the Initial
Purchasers with portions of the Liquidation Amount of the Global Capital
Securities and (ii) ownership of such interests in the Global Capital Securities
will be shown on, and the transfer of ownership thereof will be effected only
through, records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interests in the Global Capital Securities).
Investors in the Global Capital Securities may hold their interests
therein directly through DTC if they are Participants in such system, or
indirectly through organizations which are Participants in such
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system. All interests in a Global Capital Security may be subject to the
procedures and requirements of DTC. The laws of some states require that certain
persons take physical delivery in certificated form of securities that they own.
Consequently, the ability to transfer beneficial interests in a Global Capital
Security to such persons will be limited to that extent. Because DTC can act
only on behalf of Participants, which in turn act on behalf of Indirect
Participants and certain banks, the ability of a person having beneficial
interests in a Global Capital Security to pledge such interests to persons or
entities that do not participate in the DTC system, or otherwise take actions in
respect of such interests, may be affected by the lack of a physical certificate
evidencing such interests.
Except as described below, owners of interests in the Global Capital
Securities will not have New Capital Securities registered in their name, will
not receive physical delivery of New Capital Securities in certificated form and
will not be considered the registered owners or holders thereof under the
Declaration for any purpose.
Payments in respect of the Global Capital Security registered in the name
of DTC or its nominee will be payable by the Property Trustee to DTC in its
capacity as the registered holder under the Declaration. Under the terms of the
Declaration, the Property Trustee treats the persons in whose names the Capital
Securities, including the Global Capital Securities, are registered as the
owners thereof for the purpose of receiving such payments and for any and all
other purposes whatsoever. Consequently, neither the Property Trustee nor any
agent thereof has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect Participant's records
relating to or payments made on account of beneficial ownership interests in the
Global Capital Securities, or for maintaining, supervising or reviewing any of
DTC's records or any Participant's or Indirect Participant's records relating to
the beneficial ownership interests in the Global Capital Securities or (ii) any
other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants. DTC has advised the Trust and the Company
that its current practice, upon receipt of any payment in respect of securities
such as the New Capital Securities, is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in Liquidation Amount of beneficial interests in the
relevant security as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of New
Capital Securities will be governed by standing instructions and customary
practices and will be the responsibility of the Participants or the Indirect
Participants and will not be the responsibility of DTC, the Property Trustee,
the Trust or the Company. Neither the Trust nor the Company or the Property
Trustee will be liable for any delay by DTC or any of its Participants in
identifying the beneficial owners of the New Capital Securities, and the Trust
or the Company and the Property Trustee may conclusively rely on and will be
protected in relying on instructions from DTC or its nominee for all purposes.
DTC has advised the Trust and the Company that it will take any action
permitted to be taken by a holder of New Capital Securities only at the
direction of one or more Participants to whose account with DTC interests in the
Global Capital Securities are credited and only in respect of such portion of
the Liquidation Amount of the New Capital Securities as to which such
Participant or Participants has or have given such direction. However, if there
is an Event of Default under the Declaration, DTC reserves the right to exchange
the Global Capital Securities for New Capital Securities in certificated form
and to distribute such New Capital Securities to its Participants.
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The information in this section concerning DTC and book-entry systems has
been obtained from sources that the Trust and the Company believe to be
reliable, but neither the Trust nor the Company takes responsibility for the
accuracy thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the New Capital Securities held in global form
shall be made to the Depositary, which shall credit the relevant accounts at the
Depositary on the applicable Distribution Dates or in respect of the Capital
Securities that are not held by the Depositary, such payments shall be made by
check mailed to the address of the holder entitled thereto as such address shall
appear on the register. The paying agent (the "PAYING AGENT") shall initially be
the Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Administrative Trustees and the Company. The Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Company. In the event that the Property Trustee shall
no longer be the Paying Agent, the Administrative Trustees shall appoint a
successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Company) to act as Paying Agent.
RESTRICTIONS ON TRANSFER
The Old Capital Securities were issued, and the New Capital Securities
will be issued, and may be transferred only in blocks having a Liquidation
Amount of not less than $100,000 (100 Capital Securities). Any such transfer of
Capital Securities in a block having a Liquidation Amount of less than $100,000
shall be deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the holder of such Capital Securities for
any purpose, including but not limited to the receipt of Distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
REGISTRAR AND TRANSFER AGENT
The Property Trustee is the registrar and transfer agent for the Capital
Securities.
Registration of transfers of the Capital Securities will be effected
without charge by or on behalf of the Trust but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The Trust will not be required to register or cause to be registered
the transfer of any Capital Securities (i) during the period starting 15 days
before the mailing of a notice of redemption and ending on the date of such
mailing and (ii) after they have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee is under no obligation to exercise any of the powers
vested in it by the Declaration at the request of any holder of Trust Securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that might be incurred thereby. If no Event of Default has occurred
and is continuing and the Property Trustee is required to decide between
alternative causes of action, construe ambiguous provisions in the Declaration
or is unsure of the application of any provision of the Declaration, and the
matter is not one on which holders of the Capital Securities or the Common
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Securities are entitled under the Declaration to vote, then the Property Trustee
shall take such action as is directed by the Company and, if not so directed,
shall take such action as it deems advisable and in the best interests of the
holders of the Trust Securities and will have no liability except for its own
bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Trust in such a way that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a corporation
for United States federal income tax purposes and so that the Junior
Subordinated Debentures will be treated as indebtedness of the Company for
United States federal income tax purposes. In this connection, the Company and
the Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the certificate of trust of the Trust or the Declaration,
that the Company and the Administrative Trustees determine in their discretion
to be necessary or desirable for such purposes, as long as such action does not
materially adversely affect the interests of the holders of the Trust
Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money, issue debt, execute mortgages or pledge
any of its assets.
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DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Old Junior Subordinated Debentures were issued, and the New Junior
Subordinated Debentures will be issued, under an Indenture dated as of April 23,
1997 (the "INDENTURE"), between the Company and The Chase Manhattan Bank, as
trustee (the "DEBENTURE TRUSTEE"). The Indenture has been qualified under the
Trust Indenture Act. The Indenture incorporates certain provisions of the Trust
Indenture Act, and is subject to and governed by the Trust Indenture Act. This
summary of certain terms and provisions of the Junior Subordinated Debentures
and the Indenture does not purport to be complete and, where reference is made
to particular provisions of the Indenture, such provisions, including the
definitions of certain terms, some of which are not otherwise defined herein,
are qualified in their entirety by reference to all of the provisions of the
Indenture (a copy of which is filed herewith as an exhibit to the Registration
Statement, of which this Prospectus is a part) and the Trust Indenture Act.
GENERAL
Concurrently with the issuance of the Old Capital Securities, the Trust
invested the proceeds thereof, together with the consideration paid by the
Company for the Common Securities, in the Old Junior Subordinated Debentures
issued by the Company. The Junior Subordinated Debentures bear interest at the
annual rate of 9.98% of the principal amount thereof, payable semi-annually in
arrears on June 30 and December 31 of each year (each, an "INTEREST PAYMENT
DATE"), commencing June 30, 1997, to the person in whose name each Junior
Subordinated Debenture is registered, subject to certain exceptions, at the
close of business on the fifteenth day of the month preceding the month in which
the relevant payment date falls. It is anticipated that, until the liquidation,
if any, of the Trust, each Junior Subordinated Debenture will be held in the
name of the Property Trustee in trust for the benefit of the holders of Trust
Securities. The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months and, for any period of less
than a full calendar month, the number of days elapsed in such month. In the
event that any date on which interest is payable on the Junior Subordinated
Debentures is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), with the same force
and effect as if made on the date such payment was originally payable. Accrued
interest that is not paid on the applicable Interest Payment Date will bear
additional interest on the amount thereof (to the extent permitted by law) at
the rate per annum of 9.98% thereof, compounded semi-annually. The term
"interest", as used herein, shall include semi-annual interest payments,
interest on semi-annual interest payments not paid on the applicable Interest
Payment Date and Additional Sums (as defined herein), as applicable.
The Junior Subordinated Debentures will be issued in denominations of
$100,000 and integral multiples of $1,000 in excess thereof. The Junior
Subordinated Debentures will mature on December 31, 2026 (the "STATED MATURITY
DATE").
The Junior Subordinated Debentures will rank pari passu with all Other
Debentures and will be unsecured and subordinate and rank junior in right of
payment to the extent and in the manner set forth in the Indenture to all Senior
Indebtedness of the Company. See "-- Subordination" below. The Company is a
non-operating holding company and almost all of the operating assets of the
Company and its consolidated subsidiaries are owned by such subsidiaries. The
Company relies primarily on
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dividends from such subsidiaries to meet its obligations. The Company is a legal
entity separate and distinct from its banking and non-banking affiliates. The
principal sources of the Company's income are dividends, interest and fees from
its banking and non-banking affiliates. The Bank is subject to certain
restrictions imposed by federal law on any extensions of credit to, and certain
other transactions with, the Company and certain other affiliates, and on
investments in stock or other securities thereof. Such restrictions prevent the
Company and such other affiliates from borrowing from the Bank unless the loans
are secured by various types of collateral. Further, such secured loans, other
transactions and investments by the Bank are generally limited in amount as to
the Company and as to each of such other affiliates to 10% of the Bank's capital
and surplus and as to the Company and all of such other affiliates to an
aggregate of 20% of the Bank's capital and surplus. In addition, payment of
dividends to the Company by the Bank is subject to ongoing review by banking
regulators and is subject to various statutory limitations and in certain
circumstances requires approval by banking regulatory authorities. Because the
Company is a holding company, the right of the Company to participate in any
distribution of assets of any subsidiary upon such subsidiary's liquidation or
reorganization or otherwise, is subject to the prior claims of creditors of the
subsidiary, except to the extent the Company may itself be recognized as a
creditor of that subsidiary. Accordingly, the Junior Subordinated Debentures are
effectively subordinated to all existing and future liabilities of the Company's
subsidiaries, and holders of Junior Subordinated Debentures should look only to
the assets of the Company for payments on the Junior Subordinated Debentures.
The Indenture does not limit the incurrence or issuance of other secured or
unsecured debt of the Company, including Senior Indebtedness. See "--
Subordination" below.
FORM, REGISTRATION AND TRANSFER
If the Junior Subordinated Debentures are distributed to the holders of
the Trust Securities, the Junior Subordinated Debentures may be represented by
one or more global certificates registered in the name of Cede & Co. as the
nominee of DTC. The depositary arrangements for such Junior Subordinated
Debentures are expected to be substantially similar to those in effect for the
Capital Securities. For a description of DTC and the terms of the depositary
arrangements relating to payments, transfers, voting rights, redemptions and
other notices and other matters, see "Description of Capital Securities -- Form,
Denomination, Book-Entry Procedures and Transfer."
PAYMENT AND PAYING AGENTS
Payment of principal of and premium, if any, and any interest on Junior
Subordinated Debentures will be made at the office of the Debenture Trustee in
The City of New York or at the office of such Paying Agent or Paying Agents as
the Company may designate from time to time, except that at the option of the
Company payment of any interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the register for
Junior Subordinated Debentures or (ii) by transfer to an account maintained by
the Person entitled thereto as specified in such register, provided that proper
transfer instructions have been received by the relevant Record Date. Payment of
any interest on any Junior Subordinated Debenture will be made to the Person in
whose name such Junior Subordinated Debenture is registered at the close of
business on the Record Date for such interest, except in the case of defaulted
interest. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent; however the Company will at all
times
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be required to maintain a Paying Agent in each place of payment for the Junior
Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Company in trust, for the payment of the principal of and
premium, if any, or interest on any Junior Subordinated Debenture and remaining
unclaimed for two years after such principal and premium, if any, or interest
has become due and payable shall, at the request of the Company, be repaid to
the Company and the holder of such Junior Subordinated Debenture shall
thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing,
the Company will have the right under the Indenture at any time during the term
of the Junior Subordinated Debentures to defer the payment of interest at any
time or from time to time for a period not exceeding 10 consecutive semi-annual
periods with respect to each Extension Period, provided that no Extension Period
will end on a day other than an interest payment date for the Junior
Subordinated Debentures or extend beyond the Stated Maturity Date. At the end of
an Extension Period, the Company must pay all interest then accrued and unpaid
(together with interest thereon accrued at the annual rate of 9.98%, compounded
semi-annually, to the extent permitted by applicable law). During an Extension
Period, interest will continue to accrue and, if the Junior Subordinated
Debentures have been distributed to holders of the Trust Securities, holders of
Junior Subordinated Debentures (or holders of the Trust Securities while Trust
Securities are outstanding) will be required to accrue original issue discount
income for United States federal income tax purposes prior to the receipt of
cash attributable to such income. See "Certain Federal Income Tax Considerations
- -- Interest, Original Issue Discount, Premium and Market Discount."
During any such Extension Period, the Company may not (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company (including any Other Debentures) that rank pari passu
with or junior in right of payment to the Junior Subordinated Debentures or
(iii) make any guarantee payments with respect to any guarantee by the Company
of any securities of any subsidiary of the Company (including Other Guarantees)
if such guarantee ranks pari passu with or junior in right of payment to the
Junior Subordinated Debentures (other than (a) dividends or distributions in
shares of or options, warrants or rights to subscribe for or purchase shares of,
common stock of the Company, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Guarantee, (d) as a direct
result of, and only to the extent required in order to avoid the issuance of
fractional shares of capital stock following, a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's capital
stock, (e) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and (f) purchases of common
stock related to the issuance
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of common stock or rights under any of the Company's benefit plans for its
directors, officers or employees or any of the Company's dividend reinvestment
plans).
Prior to the termination of any such Extension Period, the Company may
further extend such Extension Period, provided that such extension does not
cause such Extension Period to exceed 10 consecutive semi-annual periods or to
extend beyond the Stated Maturity Date. Upon the termination of any such
Extension Period and the payment of all amounts then due on any Interest Payment
Date, the Company may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company must give the Property Trustee,
the Administrative Trustees and the Debenture Trustee notice of its election of
any Extension Period (or an extension thereof) at least five Business Days prior
to the earlier of (i) the date the Distributions on the Trust Securities would
have been payable except for the election to begin or extend such Extension
Period or (ii) the date the Administrative Trustees are required to give notice
to any securities exchange or to holders of Capital Securities of the record
date or the date such Distributions are payable, but in any event not less than
five Business Days prior to such record date. The Debenture Trustee shall give
notice of the Company's election to begin or extend a new Extension Period to
the holders of the Capital Securities. There is no limitation on the number of
times that the Company may elect to begin an Extension Period.
OPTIONAL PREPAYMENT
The Junior Subordinated Debentures are prepayable, in whole or in part, at
the option of the Company, on or after the Initial Optional Prepayment Date,
subject to the Company having received prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve, at a prepayment price (the "OPTIONAL PREPAYMENT PRICE") equal to the
percentage of the outstanding principal amount of the Junior Subordinated
Debentures specified below, plus, in each case, accrued interest thereon to the
date of prepayment if redeemed during the 12-month period beginning June 30 of
the years indicated below:
YEAR PERCENTAGE
---- ----------
2007 105.113
2008 104.601
2009 104.090
2010 103.579
2011 103.068
2012 102.556
2013 102.045
2014 101.534
2015 101.023
2016 100.511
2017 and thereafter 100.00%
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SPECIAL EVENT PREPAYMENT
If a Special Event shall occur and be continuing, the Company may, at any
time prior to the Initial Optional Prepayment Date, within 90 days after the
occurrence of the Special Event, at its option and subject to receipt of prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve, prepay the Junior Subordinated
Debentures in whole (but not in part), at a prepayment price (the "SPECIAL EVENT
PREPAYMENT PRICE") equal to the greater of (i) 100% of the principal amount of
such Junior Subordinated Debentures or (ii) the sum, as determined by a
Quotation Agent, of the present values of the principal amount and premium
payable as part of the Optional Prepayment Price with respect to an optional
redemption of such Junior Subordinated Debentures on the Initial Optional
Prepayment Date, together with scheduled payments of interest from the
prepayment date to the Initial Optional Prepayment Date, in each case discounted
to the prepayment date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
either case, accrued and unpaid interest thereon to the date of prepayment.
A "SPECIAL EVENT" means a Tax Event or a Regulatory Capital Event, as the
case may be.
A "TAX EVENT" means the receipt by the Company and the Trust of an opinion
of Weil, Gotshal & Manges LLP, or any other nationally recognized tax counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the Issue Date, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Junior Subordinated Debentures,
(ii) interest payable by the Company on the Junior Subordinated Debentures is
not, or within 90 days of the date of such opinion will not be, deductible by
the Company, in whole or in part, for United States federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
A "REGULATORY CAPITAL EVENT" shall occur at any time following the date
(the "Election Date") on which the Company shall effectively elect to treat the
Capital Securities as Tier I Capital (or its equivalent), that the Company shall
have received an opinion of independent bank regulatory counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the Election Date, the Capital Securities do not constitute, or within 90 days
of the date of such opinion, will not constitute, Tier 1 Capital (or its then
equivalent); provided, however, that a Regulatory Capital Event shall not occur
by reason of the use of the proceeds of the Junior Subordinated Debentures by
the Company contemplated herein.
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"ADJUSTED TREASURY RATE" means, with respect to any prepayment date, the
rate per annum equal to (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve and which establishes yields on actively
traded United States Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity date corresponding to
the Initial Optional Prepayment Date (if no maturity date is within three months
before or after the Initial Optional Prepayment Date, yields for the two
published maturities most closely corresponding to the Initial Optional
Prepayment Date shall be interpolated, and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis, rounding
to the nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such prepayment date plus, in either case (A)
2.625% if such prepayment date occurs on or prior to April 23, 1998 and (B)
1.875% in all other cases.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by the Quotation Agent as having a maturity date corresponding to the
Initial Optional Prepayment Date that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities with a maturity date corresponding to the
Initial Optional Prepayment Date. If no United States Treasury security has a
maturity date which is within three months before or after the Initial Optional
Prepayment Date, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the calculation
of the Adjusted Treasury Rate pursuant to clause (ii) of the definition thereof
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month.
"QUOTATION AGENT" means the Reference Treasury Dealer appointed by the
Company. "REFERENCE TREASURY DEALER" means any primary U.S. Government
securities dealer in New York City selected by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any prepayment date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such prepayment date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of five Reference Treasury Dealer Quotations for such prepayment date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Debenture Trustee obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such Quotations.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such prepayment date.
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"ADDITIONAL SUMS" means such additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on the
outstanding Capital Securities and Common Securities shall not be reduced as a
result of any additional taxes, duties or other governmental charges to which
the Trust has become subject as a result of a Tax Event.
Notice of any prepayment will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Junior Subordinated
Debentures to be prepaid at its registered address. Unless the Company defaults
in payment of the prepayment price, on and after the prepayment date interest
ceases to accrue on such Junior Subordinated Debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will pay as
additional amounts on the Junior Subordinated Debentures the Additional Sums.
CERTAIN COVENANTS OF THE COMPANY
If (1) a Debenture Event of Default occurs (other than solely a default as
described in paragraph (iii) under "- Debenture Events of Default"), (2) there
shall have occurred any event of which the Company has actual knowledge that (a)
with the giving of notice or the lapse of time, or both, would be, a Debenture
Event of Default (other than solely a default as described in paragraph (iii)
under "Debenture Events of Default") and (b) in respect of which the Company
shall not have taken reasonable steps to cure, (3) the Company shall be in
default with respect to its payment of any obligations under the Guarantee or
(4) the Company shall have given notice of its election of an Extension Period,
or any extension thereof, as provided in the Indenture and shall not have
rescinded such notice, and such Extension Period, or any extension thereof,
shall have commenced, then the Company will not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock (which includes common and
preferred stock) or (ii) make any payment of principal, interest or premium, if
any, on or repay or repurchase or redeem any debt securities of the Company
(including Other Debentures) that rank pari passu with or junior in right of
payment to the Junior Subordinated Debentures or (iii) make any guarantee
payments with respect to any guarantee by the Company of any securities of any
subsidiary of the Company (including Other Guarantees) if such guarantee ranks
pari passu or junior in right of payment to the Junior Subordinated Debentures
(other than (a) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, common stock of the Company, (b)
any declaration of a dividend in connection with the implementation of a
stockholder's rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee, (d) as a direct result of, and only to the extent
required in order to avoid the issuance of fractional shares of capital stock
following a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the issuance of common
stock or rights under any of the Company's benefit plans for its directors,
officers or employees or any of the Company's dividend reinvestment plans).
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The Company has agreed in the Indenture (i) to maintain 100 percent
ownership of the Common Securities; provided, however, that any permitted
successor of the Company under the Indenture may succeed to the Company's
ownership of the Common Securities, (ii) to use its reasonable efforts to cause
the Trust (a) to remain a statutory business trust, except in connection with
the distribution of Junior Subordinated Debentures to the holders of Trust
Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of the Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration of the Trust, and (b) to continue not to be
classified as an association taxable as a corporation or a partnership for
United States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Junior Subordinated Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debentures constitutes a
"DEBENTURE EVENT OF DEFAULT" (whatever the reason for such Debenture Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) failure for 30 days to pay any interest on the Junior Subordinated
Debentures or any Other Debentures, when due (subject to the deferral of
any due date in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the Junior
Subordinated Debentures or any Other Debentures when due whether at
maturity, upon redemption, by declaration of acceleration of maturity or
otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written
notice to the Company from the Debenture Trustee or the holders of at
least 25% in aggregate outstanding principal amount of Junior Subordinated
Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture
Trustee. The Debenture Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of the Junior Subordinated Debentures may declare
the principal due and payable immediately upon a Debenture Event of Default. The
holders of a majority in aggregate outstanding principal amount of the Junior
Subordinated Debentures may annul such declaration and waive the default if the
default (other than the nonpayment of the principal of the Junior Subordinated
Debentures which has become due solely by such acceleration) has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee.
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The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures affected thereby may, on behalf of the holders of
all the Junior Subordinated Debentures, waive any past default except a default
in the payment of principal of or premium, if any, on or interest (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest and premium, if any, and principal due otherwise than by acceleration
has been deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Junior Subordinated
Debenture.
The Indenture requires the annual filing by the Company with the Debenture
Trustee of a certificate as to the absence of certain defaults under the
Indenture.
The Indenture provides that the Debenture Trustee may withhold notice of a
Debenture Event of Default from the holders of the Junior Subordinated
Debentures (except a Debenture Event of Default in payment of principal of, or
of interest or premium on, the Junior Subordinated Debentures) if the Debenture
Trustee considers it in the interest of such holders to do so.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default shall have occurred and be continuing and
shall be attributable to the failure of the Company to pay interest or premium,
if any, on or principal of the Junior Subordinated Debentures on the due date, a
holder of Capital Securities may institute a Direct Action. A holder of Capital
Securities may also institute a Direct Action to enforce the rights of the
Property Trustee if the Property Trustee fails to enforce its rights as the
holder of the Junior Subordinated Debentures. The Company may not amend the
Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Capital Securities.
Notwithstanding any payments made to a holder of Capital Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of or premium, if any, or interest on the Junior
Subordinated Debentures, and the Company shall be subrogated to the rights of
the holder of such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Company to such holder in
any Direct Action.
The holders of the Capital Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Junior Subordinated Debentures. See "Description
of Capital Securities -- Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company shall not consolidate with or
merge into any other Person or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any Person, and no
Person shall consolidate with or merge into the Company or convey, transfer or
lease its properties and assets as an entirety or substantially as an entirety
to the Company, unless: (i) in case the Company consolidates with or merges into
another Person or conveys or transfers its properties and assets substantially
as an entirety to any Person, the successor Person is organized under the laws
of the United States or any State or the District of Columbia, and such
successor Person expressly assumes the Company's obligations on the Junior
Subordinated Debentures; (ii) immediately after giving
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effect thereto, no Debenture Event of Default, and no event which, after notice
or lapse of time or both, would become a Debenture Event of Default, shall have
occurred and be continuing; and (iii) certain other conditions as prescribed in
the Indenture are met.
The general provisions of the Indenture do not afford holders of the
Junior Subordinated Debentures protection in the event of a highly leveraged or
other transaction involving the Company that may adversely affect holders of the
Junior Subordinated Debentures.
MODIFICATION OF THE INDENTURE
From time to time the Company and the Debenture Trustee may, without the
consent of the holders of Junior Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies or enabling the Company and the
Trust to conduct the Exchange Offer as contemplated by the Registration Rights
Agreement; provided that, in any such case, such action does not materially
adversely affect the interest of the holders of Junior Subordinated Debentures.
The Indenture contains provisions permitting the Company and the Debenture
Trustee, with the consent of the holders of a majority in principal amount of
the Junior Subordinated Debentures, to modify the Indenture in a manner
affecting the rights of the holders of Junior Subordinated Debentures; provided
that no such modification may, without the consent of the holders of each
outstanding Junior Subordinated Debenture so affected, (i) change the Stated
Maturity Date, or reduce the principal amount of the Junior Subordinated
Debentures or reduce the rate or extend the time of payment of interest thereon
or (ii) reduce the percentage of principal amount of Junior Subordinated
Debentures the holders of which are required to consent to any such modification
of the Indenture.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and payable
at maturity within one year, and the Company deposits or causes to be deposited
with the Debenture Trustee funds, in trust, for the purpose and in an amount
sufficient to pay and discharge the entire indebtedness on the Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation, for the principal and premium, if any, and interest to the date of
the deposit or to the Stated Maturity Date, as the case may be, then the
Indenture will cease to be of further effect (except as to the Company's
obligations to pay all other sums due pursuant to the Indenture and to provide
the officers' certificates and opinions of counsel described therein), and the
Company will be deemed to have satisfied and discharged the Indenture.
SUBORDINATION
In the Indenture, the Company has agreed that any Junior Subordinated
Debentures issued thereunder will be subordinate and junior in right of payment
to all Senior Indebtedness to the extent provided in the Indenture. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the holders of Senior Indebtedness will
first
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be entitled to receive payment in full of all Allocable Amounts in respect of
such Senior Indebtedness before the holders of Junior Subordinated Debentures
will be entitled to receive or retain any payment in respect thereof.
In the event of the acceleration of the maturity of Junior Subordinated
Debentures, the holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
Allocable Amounts due in respect of such Senior Indebtedness before the holders
of Junior Subordinated Debentures will be entitled to receive or retain any
payment in respect of the Junior Subordinated Debentures.
No payments on account of principal or premium, if any, or interest, if
any, in respect of the Junior Subordinated Debentures may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default.
"ALLOCABLE AMOUNTS," when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Company or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of payment to such Senior
Indebtedness pursuant to any provision of such indebtedness for the payment over
of amounts received on account of such indebtedness to the holders of such
Senior Indebtedness or otherwise) but for the fact that such Senior Indebtedness
is subordinate or junior in right of payment to (or subject to a requirement
that amounts received on such Senior Indebtedness be paid over to obligees on)
trade accounts payable or accrued liabilities arising in the ordinary course of
business.
"INDEBTEDNESS" means (i) any obligation of, or any obligation guaranteed
by, the Company for the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments and any deferred
obligation for the payment of the purchase price of property or assets acquired
other than in the ordinary course of business and (ii) all indebtedness of the
Company for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements,
whether outstanding on the date of execution of the Indenture or thereafter
created, assumed or incurred. For purposes of this definition "claim" has the
meaning assigned in Section 101(5) of the Bankruptcy Code of 1978, as amended
and in effect on the date of the execution of the Indenture.
"INDEBTEDNESS RANKING ON A PARITY WITH THE JUNIOR SUBORDINATED DEBENTURES"
means Indebtedness, whether outstanding on the date of execution of the
Indenture or thereafter created, assumed or incurred, which specifically by its
terms ranks equally with and not prior to the Junior Subordinated Debentures in
the right of payment upon the happening of the dissolution or winding-up or
liquidation or reorganization of the Company. The securing of any Indebtedness,
otherwise constituting Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures, shall not be deemed to prevent such Indebtedness from
constituting Indebtedness Ranking on a Parity with the Junior Subordinated
Debentures.
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"INDEBTEDNESS RANKING JUNIOR TO THE JUNIOR SUBORDINATED DEBENTURES" means
any Indebtedness, whether outstanding on the date of execution of the Indenture
or thereafter created, assumed or incurred, which specifically by its terms
ranks junior to and not equally with or prior to the Junior Subordinated
Debentures (and any other Indebtedness Ranking on a Parity with the Junior
Subordinated Debentures) in right of payment upon the happening of the
dissolution or winding-up or liquidation or reorganization of the Company. The
securing of any Indebtedness, otherwise constituting Indebtedness Ranking Junior
to the Junior Subordinated Debentures, shall not be deemed to prevent such
Indebtedness from constituting Indebtedness Ranking Junior to the Junior
Subordinated Debentures.
"SENIOR INDEBTEDNESS" means all Indebtedness, whether outstanding on the
date of execution of the Indenture or thereafter created, assumed or incurred,
except Indebtedness Ranking on a Parity with the Junior Subordinated Debentures
or Indebtedness Ranking Junior to the Junior Subordinated Debentures, and any
deferrals, renewals or extensions of such Senior Indebtedness.
The Company is a non-operating holding company and almost all of the
operating assets of the Company are owned by the Company's subsidiaries. The
Company relies primarily on dividends from such subsidiaries to meet its
obligations for payment of principal and interest on its outstanding debt
obligations and corporate expenses. The Company is a legal entity separate and
distinct from its banking and non-banking affiliates. The principal sources of
the Company's income are dividends, interest and fees from its banking and
non-banking affiliates. The Bank is subject to certain restrictions imposed by
federal law on any extensions of credit to, and certain other transactions with,
the Company and certain other affiliates, and on investments in stock or other
securities thereof. Such restrictions prevent the Company and such other
affiliates from borrowing from the Bank unless the loans are secured by various
types of collateral. Further, such secured loans, other transactions and
investments by the Bank are generally limited in amount as to the Company and as
to each of such other affiliates to 10% of the Bank's capital and surplus and as
to the Company and all of such other affiliates to an aggregate of 20% of the
Bank's capital and surplus. In addition, payment of dividends to the Company by
the subsidiary banks is subject to ongoing review by banking regulators and is
subject to various statutory limitations and in certain circumstances requires
approval by banking regulatory authorities. Accordingly, the Junior Subordinated
Debentures are effectively subordinated to all existing and future liabilities
of the Company's subsidiaries. Holders of Junior Subordinated Debentures should
look only to the assets of the Company for payments of interest and principal
and premium, if any.
The Indenture places no limitation on the amount of additional Senior
Indebtedness that may be incurred by the Company. The Company expects from time
to time to incur additional indebtedness constituting Senior Indebtedness.
RESTRICTIONS ON TRANSFER
The Junior Subordinated Debentures will be issued and may be transferred
only in blocks having an aggregate principal amount of not less than $100,000.
Any such transfer of Junior Subordinated Debentures in a block having an
aggregate principal amount of less than $100,000 shall be deemed to be void and
of no legal effect whatsoever. Any such transferee shall be deemed not to be
holder of such Junior Subordinated Debentures for any purpose, including but not
limited to the receipt of
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payments on such Junior Subordinated Debentures, and such transferee shall be
deemed to have no interest whatsoever in such Junior Subordinated Debentures.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures are governed by and
will be construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee is subject to all the duties and responsibilities
specified with respect to an indenture trustee under the Trust Indenture Act.
Subject to such provisions, the Debenture Trustee is under no obligation to
exercise any of the powers vested in it by the Indenture at the request of any
holder of Junior Subordinated Debentures, unless offered reasonable indemnity by
such holder against the costs, expenses and liabilities which might be incurred
thereby. The Debenture Trustee is not required to expend or risk its own funds
or otherwise incur personal financial liability in the performance of its duties
if the Debenture Trustee reasonably believes that repayment or adequate
indemnity is not reasonably assured to it.
DESCRIPTION OF THE GUARANTEE
The Old Guarantee was executed and delivered by the Company concurrently
with the issuance by the Trust of the Old Capital Securities for the benefit of
the holders from time to time of the Capital Securities. The Chase Manhattan
Bank acts under the Old Guarantee, and will act under the New Guarantee, as
indenture trustee ("GUARANTEE TRUSTEE"). The New Guarantee has been qualified
under the Trust Indenture Act. This summary of certain provisions of the
Guarantee does not purport to be complete and is subject to, and qualified in
its entirety by reference to, all of the provisions of the Guarantee, including
the definitions therein of certain terms, and the Trust Indenture Act. The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of the
Capital Securities.
GENERAL
The Company has agreed to pay in full on a subordinated basis, to the
extent set forth herein, the Guarantee Payments (as defined herein) to the
holders of the Capital Securities, as and when due, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert other than
the defense of payment. The following payments with respect to the Capital
Securities, to the extent not paid by or on behalf of the Trust (the "GUARANTEE
PAYMENTS"), will be subject to the Guarantee: (i) any accumulated and unpaid
Distributions required to be paid on Capital Securities, to the extent the Trust
has funds on hand legally available therefor, (ii) the Redemption Price with
respect to any Capital Securities called for redemption, to the extent that the
Trust has funds on hand legally available therefor, or (iii) upon a voluntary or
involuntary dissolution and liquidation of the Trust (unless the Junior
Subordinated Debentures are distributed to holders of the Capital Securities),
the lesser of (a) the Liquidation Distribution and (b) the amount of assets of
the Trust remaining available for distribution to
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holders of Capital Securities. The Company's obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the
Company to the holders of the Capital Securities or by causing the Trust to pay
such amounts to such holders.
The Guarantee ranks subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided therein. See "-- Status" below.
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise is subject to the prior
claims of creditors of that subsidiary, except to the extent the Company may
itself be recognized as a creditor of that subsidiary. Accordingly, the
Company's obligations under the Guarantee will be effectively subordinated to
all existing and future liabilities of the Company's subsidiaries, and claimants
should look only to the assets of the Company for payments thereunder. See
"Description of Junior Subordinated Debentures -- General." The Guarantee does
not limit the incurrence or issuance of other secured or unsecured debt of the
Company, including Senior Indebtedness, whether under the Indenture, any other
indenture that the Company may enter into in the future or otherwise.
The Company has, through the Guarantee, the Declaration, the Junior
Subordinated Debentures and the Indenture, taken together, fully, irrevocably
and unconditionally guaranteed all of the Trust's obligations under the Capital
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Trust's obligations under the
Capital Securities. See "Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee."
STATUS
The Guarantee constitutes an unsecured obligation of the Company and ranks
subordinate and junior in right of payment to all Senior Indebtedness in the
same manner as the Junior Subordinated Debentures.
The Guarantee ranks pari passu with the Junior Subordinated Debentures and
with all other guarantees (if any) issued by the Company after the Issue Date
with respect to capital securities (if any) issued by Other Trusts. The
Guarantee constitutes a guarantee of payment and not of collection (i.e., the
guaranteed party may institute a legal proceeding directly against the Company
to enforce its rights under the Guarantee without first instituting a legal
proceeding against any other person or entity). The Guarantee will be held for
the benefit of the holders of the Capital Securities. The Guarantee will not be
discharged except by payment of the Guarantee Payments in full to the extent not
paid by the Trust or upon distribution to the holders of the Capital Securities
of the Junior Subordinated Debentures. The Guarantee does not place a limitation
on the amount of additional Senior Indebtedness that may be incurred by the
Company. The Company expects from time to time to incur additional indebtedness
constituting Senior Indebtedness.
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EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of a majority in Liquidation Amount of the Capital Securities will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee in respect of the Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under the Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee Trustee or
any other person or entity.
The Company, as guarantor, will be required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
CERTAIN COVENANTS OF THE COMPANY
The Guarantee provides that, so long as any Capital Securities remain
outstanding, if there shall have occurred any event that would constitute an
event of default under the Guarantee or the Declaration (other than solely a
default as described in paragraph (iii) under "Description of Junior
Subordinated Debentures -- Debenture Events of Default"), then the Company will
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock (which includes common and preferred stock), (ii) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company (including any Other Debentures) that rank pari
passu with or junior in right of payment to the Junior Subordinated Debentures
or (iii) make any guarantee payments with respect to any guarantee by the
Company of any securities of any subsidiary of the (including Other Guarantees)
Company if such guarantee ranks pari passu with or junior in right of payment to
the Junior Subordinated Debentures (other than (a) dividends or distributions in
shares of or options, warrants or rights to subscribe for or purchase shares of,
common stock of the Company, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Guarantee, (d) as a direct
result of, and only to the extent required in order to avoid the issuance of
fractional shares of capital stock following a reclassification of the Company's
capital stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's capital
stock, (e) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and (f) purchases of common
stock related to the issuance of common stock or rights under any of the
Company's benefit plans for its directors, officers or employees or any of the
Company's dividend reinvestment plans).
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AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the Capital Securities (in which case no vote will be
required), the Guarantee may not be amended without the prior approval of the
holders of a majority of the Liquidation Amount of such outstanding Capital
Securities. The manner of obtaining any such approval will be as set forth under
"Description of Capital Securities -- Voting Rights; Amendment of the
Declaration." All guarantees and agreements contained in the Guarantee
Agreements shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders of
the Capital Securities then outstanding.
TERMINATION
The Guarantee will terminate and be of no further force and effect upon
full payment of the applicable Redemption Price of the Capital Securities, upon
full payment of the Liquidation Amount payable upon liquidation of the Trust or
upon distribution of the Junior Subordinated Debentures to the holders of the
Capital Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Capital
Securities must restore payment of any sums paid under the Capital Securities or
the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee is under no obligation to exercise any of the powers
vested in it by the Guarantee at the request of any holder of Capital
Securities, unless offered reasonable indemnity against the costs, expenses and
liabilities which might be incurred thereby. The Guarantee Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if it reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
The Company or its affiliates maintain certain accounts and other banking
relationships with the Guarantee Trustee and its affiliates in the ordinary
course of business.
GOVERNING LAW
The Guarantee is governed by, and construed in accordance with, the
internal laws of the State of New York.
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RELATIONSHIP AMONG THE CAPITAL SECURITIES, THE
JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital Securities
(to the extent the Trust has funds on hand legally available for the payment of
such Distributions) are irrevocably guaranteed by the Company as and to the
extent set forth under "Description of the Guarantee." Taken together, the
Company's obligations under the Junior Subordinated Debentures, the Indenture,
the Declaration and the Guarantee provide, in the aggregate, a full, irrevocable
and unconditional guarantee of payments of Distributions and other amounts due
on the Capital Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Capital Securities. If and to the extent that the
Company does not make the required payments on the Junior Subordinated
Debentures, the Trust will not have sufficient funds to make the related
payments, including Distributions, on the Capital Securities. The Guarantee will
not cover any such payment when the Trust does not have sufficient funds on hand
legally available therefor. In such event, the remedy of a holder of Capital
Securities is to institute a Direct Action. The obligations of the Company under
the Guarantee are subordinate and junior in right of payment to all Senior
Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
the Junior Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because: (i) the aggregate principal amount or Prepayment Price of the Junior
Subordinated Debentures will be equal to the sum of the Liquidation Amount or
Redemption Price, as applicable, of the Capital Securities and Common
Securities; (ii) the interest rate and interest and other payment dates on the
Junior Subordinated Debentures will match the Distribution rate and Distribution
and other payment dates for the Trust Securities; (iii) the Company shall pay
for all and any costs, expenses and liabilities of the Trust except the Trust's
obligations to holders of Trust Securities under such Trust Securities; and (iv)
the Declaration will provide that the Trust is not authorized to engage in any
activity that is not consistent with the limited purposes thereof.
ENFORCEMENT OF RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee, the Trust or any
other person or entity.
A default or event of default under any Senior Indebtedness would not
constitute a default or Event of Default under the Declaration. However, in the
event of payment defaults under, or acceleration of, Senior Indebtedness, the
subordination provisions of the Indenture provide that no payments may be made
in respect of the Junior Subordinated Debentures until such Senior Indebtedness
has been paid in
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full or any payment default thereunder has been cured or waived. Failure to make
required payments on Junior Subordinated Debentures would constitute an Event of
Default under the Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities represent preferred beneficial interests in the
Trust, and the Trust exists for the sole purpose of issuing and selling the
Trust Securities, using the proceeds from the sale of the Trust Securities to
acquire the Junior Subordinated Debentures and engaging in only those other
activities necessary, advisable or incidental thereto, including engaging in the
Exchange Offer.
RIGHTS UPON DISSOLUTION
Unless the Junior Subordinated Debentures are distributed to holders of
the Trust Securities, upon any voluntary or involuntary dissolution and
liquidation of the Trust, after satisfaction of liabilities to creditors of the
Trust as required by applicable law, the holders of the Trust Securities will be
entitled to receive, out of assets held by the Trust, the Liquidation
Distribution in cash. See "Description of Capital Securities -- Liquidation of
the Trust and Distribution of Junior Subordinated Debentures." Upon any
voluntary or involuntary liquidation or bankruptcy of the Company, the Property
Trustee, as holder of the Junior Subordinated Debentures, would be a
subordinated creditor of the Company, subordinated in right of payment to all
Senior Indebtedness as set forth in the Indenture, but entitled to receive
payment in full of principal (and premium, if any) and interest, before any
stockholders of the Company receive payments or distributions. Since the Company
is the guarantor under the Guarantee and will agree to pay for all costs,
expenses and liabilities of the Trust (other than the Trust's obligations to the
holders of its Trust Securities), the positions of a holder of Capital
Securities and a holder of Junior Subordinated Debentures relative to other
creditors and to stockholders of the Company in the event of liquidation or
bankruptcy of the Company are expected to be substantially the same.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain of the principal United States
Federal income tax consequences of the purchase, ownership and disposition of
the Capital Securities to a holder that is a citizen or resident of the United
States, a corporation, partnership or other entity created or organized under
the laws of the United States or any state thereof or the District of Columbia
or an estate or trust the income of which is subject to United States Federal
income taxation regardless of source (a "U.S. Holder"). This summary does not
address the United States Federal income tax consequences to persons other than
U.S. Holders or to persons other than purchasers of Capital Securities upon
their initial issuance.
This summary is based on the United States Federal income tax laws,
regulations and rulings and decisions now in effect, all of which are subject to
change, possibly on a retroactive basis. This summary does not address the tax
consequences applicable to investors that may be subject to special tax rules
such as banks, thrifts, real estate investment trusts, regulated investment
companies, insurance companies, dealers in securities or currencies, tax-exempt
investors or persons that will hold the Capital Securities as a position in a
"straddle," as part of a "synthetic security", "hedge," "conversion transaction"
or other integrated investment or as other than a capital asset. This summary
also does not address the tax consequences to persons that have a functional
currency other than the U.S. dollar or the tax consequences to shareholders,
partners or beneficiaries of a holder of Capital Securities. Further, it does
not include any description of any alternative minimum tax or estate and gift
tax consequences or the tax laws of any state or local government or of any
foreign government that may be applicable to the Capital Securities.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS
IN LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX
CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF CAPITAL SECURITIES,
AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
EXCHANGE OF CAPITAL SECURITIES
The exchange of Old Capital Securities for New Capital Securities pursuant
to the Exchange Offer should not constitute an "exchange" for United States
Federal income tax purposes. Accordingly, there should be no United States
Federal income tax consequences to U.S. Holders as a result of the consummation
of the Exchange Offer.
CLASSIFICATION OF THE TRUST
Upon the issuance of the Old Capital Securities, Weil, Gotshal & Manges
LLP (a limited liability partnership including professional corporations) issued
its opinion (the "Tax Opinion") to the effect that, under then current law and
assuming full compliance with the terms of the Trust Agreement (and certain
other documents), and based on certain facts and assumptions contained in such
opinion, the Trust will be classified, for United States Federal income tax
purposes, as a grantor trust and not as an association taxable as a corporation.
As a result, each holder of Capital Securities will be treated as owning an
undivided beneficial interest in the Junior Subordinated Debentures and each
holder will be
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required to include in its gross income the items of income realized with
respect to its allocable share of those Junior Subordinated Debentures.
Investors should be aware that the Tax Opinion does not address any other issue
and is not binding on the IRS or the courts.
INTEREST, ORIGINAL ISSUE DISCOUNT, PREMIUM AND MARKET DISCOUNT
The Old Junior Subordinated Debentures were issued with original issue
discount ("OID"). The amount of OID is equal to the excess of the stated
redemption price at maturity of the Junior Subordinated Debentures over their
"issue price" (i.e., generally, the initial offering price to the public,
excluding bond houses or brokers). For the reasons stated below, the stated
interest on the Junior Subordinated Debentures will not be treated as "qualified
stated interest," and, therefore, will be included in the stated redemption
price at maturity of the Junior Subordinated Debentures.
Final Treasury Regulations issued on June 16, 1996 generally provide that
stated interest on a debt instrument is not "qualified stated interest" and,
therefore, will give rise to OID unless such interest is unconditionally payable
in cash or in property (other than debt instruments of the issuer) at least
annually at a single fixed rate. Interest is considered to be unconditionally
payable only if reasonable legal remedies exist to compel timely payment or the
debt instrument otherwise provides terms and conditions that make the likelihood
of late payment (other than late payment that occurs within a reasonable grace
period) or non-payment a "remote contingency."
The Company has the right, at any time and from time to time during the
term of the Junior Subordinated Debentures, to defer payments of interest by
extending the interest payment period for a period not exceeding 10 consecutive
semi-annual periods, provided that no Extension Period may extend beyond the
Stated Maturity of the Junior Subordinated Debentures. Because of this option,
all of the stated interest payments on those Junior Subordinated Debentures will
be treated as OID. Holders of debt instruments issued with OID must include that
discount in income on an economic accrual basis before the receipt of cash
attributable to the interest, regardless of their regular method of tax
accounting. The amount of OID includable in income is the sum of the "daily
portions" of OID with respect to each day during the taxable year or portion of
the taxable year in which the obligation was held ("accrued OID"). The daily
portion is determined by allocating to each day in any "accrual period" a pro
rata portion of the OID allocable to the accrual period. Under the Treasury
Regulations, the "accrual period" for each obligation may be of any length and
may vary in length over the term of the obligation, provided that each accrual
period is no longer than one year and each scheduled payment occurs on either
the first or last day of an accrual period. The amount of OID allocable to any
accrual period is an amount equal to the product of each obligation's adjusted
issue price at the beginning of such accrual period and its yield to maturity
(determined on the basis of compounding at the close of each accrual period and
properly adjusted for the length of the accrual period). If all accrual periods
are of equal length except for either an initial short period or an initial and
final short period, the amount of OID allocable to the initial short accrual
period may be computed under any reasonable method. The "adjusted issue price"
of an interest in a Junior Subordinated Debenture at the start of any accrual
period is equal to its purchase price (generally, the purchase price of the
Capital Security, less any purchased accrued interest) increased by the accrued
OID for each prior accrual period and reduced by the amount of any cash
payments. In the event that the interest payment period is extended, holders
will continue to accrue OID on an economic accrual basis over the length of the
extended interest period.
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To the extent a holder acquires its Capital Securities in the secondary
market at a price that is greater or less than the adjusted issue price of such
holder's share of the Junior Subordinated Debentures, the holder may be deemed
to have acquired its interest in the Junior Subordinated Debentures with
acquisition premium or with market discount, as the case may be. A holder who
purchases Capital Securities at a premium will be permitted to reduce the amount
of OID required to be included in income to reflect the acquisition premium. A
holder who purchases Capital Securities at a market discount will also include
the amount of such discount in income in accordance with the market discount
rules described below.
A holder that acquires its undivided beneficial interest in the Junior
Subordinated Debentures at a market discount generally will be required to
recognize ordinary income to the extent of accrued market discount on the Junior
Subordinated Debentures upon the retirement of the underlying Junior
Subordinated Debentures or, to the extent of any gain, upon the disposition of
the Capital Securities. Such market discount would accrue ratably, or, at the
election of the holder, under a constant yield method over the remaining term of
the Junior Subordinated debentures. A holder will also be required to defer the
deduction of a portion of the interest paid or accrued on indebtedness incurred
to purchase or carry Capital Securities that represent Junior Subordinated
Debentures acquired with market discount. In lieu of the foregoing, a holder may
elect to include market discount in income currently as it accrues on all market
discount instruments acquired by such holder in the taxable year of the election
or thereafter, in which case the interest deferral rule will not apply.
A holder may elect, in lieu of applying the market discount or premium
rules described above, to account for all income under the Junior Subordinated
Debentures as if it were OID. A holder that makes this election and that is
considered to have acquired its undivided beneficial interest in the Junior
Subordinated Debentures with market discount will be considered to have made the
election described in the immediately preceding paragraph.
Holders of Capital Securities will not be entitled to a dividends-received
deduction with respect to any income earned on the Capital Securities.
RECEIPT OF JUNIOR SUBORDINATED DEBENTURES UPON LIQUIDATION OF THE TRUST
As described under "Description of Capital Securities-Liquidation of the
Trust and Distribution of Junior Subordinated Debentures," Junior Subordinated
Debentures may be distributed to holders in exchange for the Capital Securities
and in liquidation of the Trust. Under current law, such a distribution would be
treated as a non-taxable event to each holder and each holder's aggregate tax
basis in the Junior Subordinated Debentures would be equal to such holder's
aggregate tax basis in its Capital Securities. A holder's holding period in the
Junior Subordinated Debentures so received in liquidation of the Trust would
include the period for which the Capital Securities were held by such holder.
If, however, the liquidation of the Trust were to occur because the Trust is
subject to United States Federal income tax with respect to income accrued or
received on the Junior Subordinated Debentures, the distribution of Junior
Subordinated Debentures to the holders of Capital Securities by the Trust would
be a taxable event to the Trust and a holder of Capital Securities would
recognize gain or loss as if such holder had exchanged its Capital Securities
for the Junior Subordinated Debentures it received upon the liquidation of the
Trust. A holder will be taxable on OID in respect of Junior Subordinated
Debentures
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received from the Trust in the manner described above under "-Interest, Original
Issue Discount, Premium and Market Discount."
SALE OR REDEMPTION OF CAPITAL SECURITIES
A holder that sells Capital Securities (including a redemption for cash)
will recognize gain or loss equal to the difference between the amount realized
on the sale and its adjusted tax basis in the securities sold or redeemed. A
holder's adjusted tax basis in the Capital Securities generally will be its
initial purchase price increased by OID previously includable in such holder's
gross income to the date of disposition (and the accrual of market discount, if
any, if an election to accrue market discount in income currently is made) and
decreased by payments received on the Capital Securities. Except to the extent
noted above and subject to the market discount rules of the Code, any such gain
or loss generally will be long-term capital gain or loss if the Capital
Securities were held for more than one year.
The Capital Securities may trade at a price that does not fully reflect
the value of accrued but unpaid interest with respect to the underlying Junior
Subordinated Debentures. A holder who disposes of its Capital Securities between
record dates for payments of distributions thereon will be required to include
accrued but unpaid interest on the Junior Subordinated Debentures through the
date of disposition in income as ordinary income (i.e., OID), and to add such
amount to its adjusted tax basis in its Capital Securities disposed of. To the
extent the selling price (which may not fully reflect the value of accrued but
unpaid interest) is less than such holder's adjusted tax basis (which will
include accrued OID, including all accrued but unpaid interest), a holder will
recognize a capital loss. Subject to certain limited exceptions, capital losses
cannot be applied to offset ordinary income for United States Federal income tax
purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
Subject to the qualifications discussed below, income on the Capital
Securities will be reported to holders on Forms 1099, which forms are expected
to be mailed to holders of Capital Securities by January 31 following each
calendar year.
The Trust will be obligated to report annually to Cede & Co., as holder of
record of the Capital Securities, the interest (or OID) related to the Junior
Subordinated Debentures for that year. The Trust currently intends to report
such information on Form 1099 prior to January 31 following each calendar year
even though the Trust is not legally required to report to record holders until
April 15 following each calendar year. The Initial Purchasers have indicated to
the Trust that, to the extent that they hold Capital Securities as nominees for
beneficial holders, they currently expect to report to such beneficial holders
on Forms 1099 by January 31 following each calendar year. Under current law,
holders of Capital Securities who hold as nominees for beneficial holders will
not have any obligation to report information regarding the beneficial holders
to the Trust. The Trust, moreover, will not have any obligation to report to
beneficial holders who are not also record holders. Thus, beneficial holders of
Capital Securities who hold their Capital Securities through the Initial
Purchasers will receive Forms 1099 reflecting the income on their Capital
Securities from such nominee holders rather than the Trust.
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Payments made on, and proceeds from the sale of, the Capital Securities
may be subject to a "backup" withholding tax of 31% unless the holder complies
with certain identification requirements. Any withheld amounts will be allowed
as a credit against the holder's Federal income tax liability, provided the
required information is provided to the IRS.
PROPOSED TAX LEGISLATION
On February 6, 1997, President Clinton submitted to Congress the Proposal
to implement certain tax legislation that would, as explained in the Joint
Committee Description, generally deny interest deductions for interest on an
instrument which (a) is issued by a corporation, (b) has a maximum term of more
than 15 years and (c) is not shown as indebtedness on the separate balance sheet
of the issuer (or, if the instrument is issued to a related party other than a
corporation and the holder or some other related party issues a related
instrument, such instrument is not shown as indebtedness on the issuer's
consolidated balance sheet). If such provision were to apply to the Junior
Subordinated Debentures, the Company would be unable to deduct interest on the
Junior Subordinated Debentures, which under current law, the Company believes it
will be able to deduct. However, as explained in the Joint Committee
Description, legislation enacted under the Proposal would be effective generally
for instruments issued on or after the date of first congressional committee
action on the Proposal. There can be no assurance that the Proposal will not
result in legislation having a retroactive effect and applicable to the Junior
Subordinated Debentures. Furthermore, there can be no assurance that other
legislation enacted after the date hereof will not otherwise adversely affect
the ability of the Company to deduct the interest payable on the Junior
Subordinated Debentures. Accordingly, there can be no assurance that the
Proposal or any other such legislation will not result in a Tax Event, which
would permit the Company to cause a redemption of the Capital Securities before,
as well as after, June 30, 2007. See "Description of Capital Securities --
Redemption" and "Description of Junior Subordinated Debentures -- Special Event
Prepayment."
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
HOLDER'S PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF THE CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER
STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN
UNITED STATES FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
The Company, the obligor with respect to the Junior Subordinated
Debentures held by the Trust, and the Property Trustee may be considered a
"PARTY IN INTEREST" (within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) or a "DISQUALIFIED PERSON" (within
the meaning of Section 4975 of the Code) with respect to many Plans and Plan
Asset Entities. Any purchaser proposing to acquire Capital Securities with
assets of any Plan or Plan Asset Entity should consult with its counsel,
particularly with respect to the applicability of the prohibited transaction
provisions of ERISA and Section 4975 of the Code. The purchase and/or holding of
Capital Securities
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by a Plan or Plan Asset Entity that is subject to the fiduciary responsibility
provisions of ERISA or the prohibited transaction provisions of Section 4975 of
the Code (including individual retirement arrangements and other plans described
in Section 4975(e)(1) of the Code) and with respect to which the Company or the
Property Trustee is a service provider (or otherwise is a party in interest or a
disqualified person) may constitute or result in a prohibited transaction under
ERISA or Section 4975 of the Code, unless such Capital Securities are acquired
pursuant to and in accordance with an applicable exemption, such as Prohibited
Transaction Class Exemption ("PTCE") 84-14 (an exemption for certain
transactions determined by an independent qualified professional asset manager),
PTCE 91-38 (an exemption for certain transactions involving bank collective
investment funds), PTCE 90-1 (an exemption for certain transactions involving
insurance company pooled separate accounts), PTCE 95-60 (an exemption for
transactions involving certain insurance company general accounts) or PTCE 96-23
(an exception for certain transactions determined by an in-house asset manager).
In addition, a Plan fiduciary considering the purchase of Capital Securities
should be aware that the assets of the Trust may be considered "plan assets" for
ERISA purposes. In such event, service providers with respect to the assets of
the Trust may become parties in interest or disqualified persons with respect to
investing Plans or Plan Asset Entities, and any discretionary authority
exercised with respect to the Junior Subordinated Debentures by such persons
could be deemed to constitute a prohibited transaction under ERISA or the Code.
In order to avoid such prohibited transactions, each investing Plan or Plan
Asset Entity, by purchasing the Capital Securities, will be deemed to have
directed the Trust to invest in the Junior Subordinated Debentures and to have
appointed the Property Trustee.
A Plan fiduciary should consider whether the purchase of Capital
Securities could result in a delegation of fiduciary authority to the Property
Trustee, and, if so, whether such a delegation of authority is permissible under
the Plan's governing instrument or any investment management agreement with the
Plan. In making such determination, a Plan fiduciary should note that the
Property Trustee is a U.S. bank qualified to be an investment manager (within
the meaning of section 3(38) of ERISA) to which such delegation of authority
generally would be permissible under ERISA. Further, prior to an Event of
Default with respect to the Junior Subordinated Debentures, the Property Trustee
will have only limited custodial and ministerial authority with respect to Trust
assets.
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PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of New Capital Securities received
in exchange for Old Capital Securities where such Old Capital Securities were
acquired as a result of market-making activities or other trading activities.
The Company and the Trust have agreed that, starting on the date on which the
Exchange Offer is consummated and ending on the close of business 90 days after
such date, they will make this Prospectus, as amended or supplemented, available
to any broker-dealer for use in connection with any such resale. In addition,
until ________, 1997, all dealers effecting transactions in the New Capital
Securities may be required to deliver a prospectus.
The Company and the Trust will not receive any proceeds from any sale of
New Capital Securities by broker-dealers. New Capital Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New Capital
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers of
any such New Capital Securities. Any broker-dealer that resells New Capital
Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such New
Capital Securities may be deemed to be an "underwriter" within the meaning of
the Securities Act and any profit on any such resale of New Capital Securities
and any commissions or concessions received by an such persons may be deemed to
be underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days after the date on which the Exchange Offer is
consummated, the Company and the Trust will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holders of the Old Capital Securities) other
than commissions or concessions of any brokers or dealers and will indemnify the
holders of the Old Capital Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
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LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the New
Capital Securities and the creation of the Trust will be passed upon on behalf
of the Company and the Trust by Richards, Layton & Finger P.A., special Delaware
counsel to the Company and the Trust. The validity under New York law of the New
Junior Subordinated Debentures and the New Guarantee will be passed upon for the
Company and the Trust by Weil, Gotshal & Manges LLP (a limited liability
partnership including professional corporations), New York, New York. Certain
United States federal income tax matters have been, and will be in connection
with the Exchange Offer, passed upon for the Company and the Trust by Weil,
Gotshal & Manges LLP.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1996 and 1995 and for each of the years in the three-year period ended December
31, 1996, incorporated by reference herein, have been audited by KPMG Peat
Marwick LLP, independent auditors, as indicated in their report with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in accounting and auditing.
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<TABLE>
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<S> <C>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN CONTAINED OR IMPERIAL CAPITAL TRUST I
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE
ACCOMPANYING LETTER OF TRANSMITTAL, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY $75,000,000
IMPERIAL BANCORP OR IMPERIAL CAPITAL TRUST I.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE
ACCOMPANYING LETTER OF TRANSMITTAL NOR ANY SALE
MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY 9.98% CAPITAL SECURITIES
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS
NOT BEEN ANY CHANGE IN THE AFFAIRS OF IMPERIAL
BANCORP OR IMPERIAL CAPITAL TRUST I SINCE THE DATE
HEREOF. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR FULLY AND UNCONDITIONALLY GUARANTEED,
THE ACCOMPANYING LETTER OF TRANSMITTAL CONSTITUTES TO THE EXTENT DESCRIBED HEREIN, BY
AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR
IN WHICH THE PERSON MAKING SUCH OFFER IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. IMPERIAL BANCORP
TABLE OF CONTENTS
PAGE ---------------------
Available Information...............................1 PROSPECTUS
Incorporation of Certain Documents by
Reference.........................................2
Summary.............................................3 ---------------------
Risk Factors.......................................11
Imperial Bancorp...................................18
Use of Proceeds....................................21
Ratios of Earnings to Fixed Charges................22
Capitalization.....................................23
Selected Consolidated Financial Data
of Imperial Bancorp..............................24
Pro Forma Financial Information....................27
Security Ownership of Certain Beneficial
Owners and Management............................33
The Exchange Offer.................................36
The Trust..........................................47 ________ __, 1997
Description of Capital Securities..................48
Description of Junior Subordinated
Debentures.......................................61
Description of the Guarantee.......................73
Relationship Among the Capital Securities,
the Junior Subordinated Debentures
and the Guarantee................................77
Certain Federal Income Tax Considerations..........79
ERISA Considerations...............................83
Plan of Distribution...............................85
Legal Matters......................................86
Experts............................................86
======================================================= ===========================================================
</TABLE>
<PAGE>
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Articles of Incorporation of the Company provides that
the liability of directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under California law. Article V
also provides that the Company is authorized to provide indemnification of
agents (as defined in Section 317 of the California Corporations Code) through
bylaw provisions, agreements with agents, vote of shareholders or disinterested
directors, or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits set forth in Section 204 of the California Corporations Code.
Article III, Section 16 of the Bylaws of the Company provides generally
that the board of directors may authorize the Company to indemnify officers,
directors, agents and employees of the Company to the fullest extent permitted
by the California Corporations Code.
Pursuant to Section 317 of the California Corporations Code, a
corporation generally has the power to indemnify its present and former
directors, officers, employees and agents against expenses incurred by them in
connection with any suit to which they are, or are threatened to be made, a
party by reason of their serving in such positions so long as they acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, the
best interests of a corporations, and with respect to any criminal action, they
had no reasonable cause to believe their conduct was unlawful. With respect to
suits by or in the right of a corporation, however, indemnification is not
available if such person is adjudged to be liable to the corporation in the
performance of his duty to the corporation or its shareholders unless the court
determines that indemnification is appropriate. In addition, a corporation has
the power to purchase and maintain insurance for such persons. The statute also
expressly provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise.
The Company also currently maintains an insurance policy that insures
its directors and officers against liability for certain acts and omissions
while acting in their official capacities.
II-1
<PAGE>
ITEM 21. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Indenture, dated as of April 23, 1997, between the Company and The
Chase Manhattan Bank, as Trustee.*
4.2 Form of Junior Subordinated Deferrable Interest Debenture (included in
the Indenture filed as Exhibit 4.1 to this Registration Statement).*
4.3 Certificate of Trust of Imperial Capital Trust I dated April 8, 1997.*
4.4 Amended and Restated Declaration of Trust of Imperial Capital Trust I
(the "Trust"), dated as of April 23, 1997, among the Company, as
sponsor, the Administrative Trustees party thereto, Chase Manhattan
Bank Delaware, as Delaware Trustee, The Chase Manhattan Bank, as
Property Trustee and the holders from time to time of undivided
interests in the assets of the Trust.*
4.5 Form of Capital Security Certificate for the Trust (included in the
Declaration filed as Exhibit 4.4 to this Registration Statement).*
4.6 Capital Securities Guarantee Agreement, dated as of April 23, 1997,
between the Company and The Chase Manhattan Bank, as Guarantee
Trustee.*
4.7 Registration Rights Agreement, dated April 23, 1997, among the Company,
the Trust and Keefe, Bruyette & Woods, Inc., as Representative of the
Initial Purchasers.*
5.1 Opinion of Richards, Layton & Finger as to validity of the New Capital
Securities.**
5.2 Opinion of Weil, Gotshal & Manges LLP as to validity of the New Junior
Subordinated Debentures and the New Guarantee to be issued by the
Company.**
8 Opinion of Weil, Gotshal & Manges LLP as to certain federal income tax
matters.**
12 Statement of Computation of Ratios of Earnings to Fixed Charges.**
23.1 Consent of KPMG Peat Marwick LLP.**
23.2 Consent of Richards, Layton & Finger (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).**
- -------------------------
* Previously Filed
** Filed herewith
II-2
<PAGE>
23.3 Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as
Exhibit 5.2 to this Registration Statement).**
23.4 Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as
Exhibit 8 to this Registration Statement).**
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as
trustee under the Indenture.**
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as
trustee under the Declaration.**
25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as
trustee under the Guarantee.**
99.1 Form of Letter of Transmittal.**
99.2 Form of Notice of Guaranteed Delivery.**
99.3 Form of Exchange Agent Agreement.**
ITEM 22. UNDERTAKINGS.
Each of the undersigned registrants hereby undertakes that,
for purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of a Registrant's annual report pursuant to Section 13 (a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of a registrant pursuant to the foregoing provisions, or otherwise each
of the undersigned registrants has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by a
registrant of expenses incurred by a director, officer or controlling person of
a 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, each of
- -------------------------
* Previously Filed
** Filed herewith
II-3
<PAGE>
the undersigned registrants 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 Act and will be governed by the final
adjudication of such issue.
Each of the undersigned registrants hereby undertakes to
respond to requests for information that is incorporated by reference into the
prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form 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.
Each of the undersigned registrants hereby undertake 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant has duly caused this Amendment to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Inglewood, State of California, on this 12th day of June 1997.
IMPERIAL BANCORP
By: /s/ George L. Graziadio
-------------------------------
George L. Graziadio, Jr.
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the Registration Statement has been signed below by the following
persons on behalf of the registrant and in the capacities and on the date
indicated.
SIGNATURE TITLE DATE
/s/ * Chairman of the Board, President June 12, 1997
- ----------------------------- and Chief Executive Officer
George L. Graziadio, Jr. (Principal Executive Officer)
/s/ * Executive Vice President and June 12, 1997
- ----------------------------- Chief Financial Officer
Christine M. McCarthy (Principal Financial Officer)
/s/ * Senior Vice President and June 12, 1997
- ----------------------------- Controller
Karen C. Abajian (Principal Accounting Officer)
/s/ * Director June 12, 1997
- -----------------------------
Norman P. Creighton
/s/ * Director June 12, 1997
- -----------------------------
Richard K. Eamer
/s/ * Director June 12, 1997
- -----------------------------
M. Norvel Young
/s/ * Director June 12, 1997
- -----------------------------
Lee E. Mikles
/s/ Robert M. Franko
- ----------------------------- June 12, 1997
Robert M. Franko
Attorney-in-fact
* Signed on behalf of each of
the above-mentioned individuals
by their attorney-in-fact
Robert M. Franko
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Imperial Capital Trust I has duly caused this Amendment to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Inglewood, State of California on this 12th day of
June 1997.
IMPERIAL CAPITAL TRUST I
By:/s/ Robert M. Franko
---------------------------------
Robert M. Franko
Administrative Trustee
By:/s/ Richard M. Baker
---------------------------------
Richard M. Baker
Administrative Trustee
II-6
<PAGE>
EXHIBIT INDEX
4.1 Indenture, dated as of April 23, 1997, between the Company and The
Chase Manhattan Bank, as Trustee.*
4.2 Form of Junior Subordinated Deferrable Interest Debenture (included in
the Indenture filed as Exhibit 4.1 to this Registration Statement).*
4.3 Certificate of Trust of Imperial Capital Trust I dated April 8, 1997.*
4.4 Amended and Restated Declaration of Trust of Imperial Capital Trust I
(the "Trust"), dated as of April 23, 1997, among the Company, as
sponsor, the Administrative Trustees party thereto, Chase Manhattan
Bank Delaware, as Delaware Trustee, The Chase Manhattan Bank, as
Property Trustee and the holders from time to time of undivided
interests in the assets of the Trust.*
4.5 Form of Capital Security Certificate for the Trust (included in the
Declaration filed as Exhibit 4.4 to this Registration Statement).*
4.6 Capital Securities Guarantee Agreement, dated as of April 23, 1997,
between the Company and The Chase Manhattan Bank, as Guarantee
Trustee.*
4.7 Registration Rights Agreement, dated April 23, 1997, among the Company,
the Trust and Keefe, Bruyette & Woods, Inc., as Representative of the
Initial Purchasers.*
5.1 Opinion of Richards, Layton & Finger as to validity of the New Capital
Securities.**
5.2 Opinion of Weil, Gotshal & Manges LLP as to validity of the New Junior
Subordinated Debentures and the New Guarantee to be issued by the
Company.**
8 Opinion of Weil, Gotshal & Manges LLP as to certain federal income tax
matters.**
12 Statement of Computation of Ratios of Earnings to Fixed Charges.**
23.1 Consent of KPMG Peat Marwick LLP.**
23.2 Consent of Richards, Layton & Finger (included in the opinion filed as
Exhibit 5.1 to this Registration Statement).**
23.3 Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as
Exhibit 5.2 to this Registration Statement).**
23.4 Consent of Weil, Gotshal & Manges LLP (included in the opinion filed as
Exhibit 8 to this Registration Statement).**
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as
trustee under the Indenture.**
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as
trustee under the Declaration.**
25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act as
trustee under the Guarantee.**
99.1 Form of Letter of Transmittal.**
99.2 Form of Notice of Guaranteed Delivery.**
99.3 Form of Exchange Agent Agreement.**
- -----------------------------
* Previously filed
** Filed hereunder
EXHIBIT 5.1
Richards, Layton & Finger
One Rodney Square
P.O.Box 551
Wilmington, DE 19899
June 18, 1997
Imperial Capital Trust I
c/o Imperial Bancorp
9920 South La Cienega Boulevard
Inglewood, California 90301
RE: IMPERIAL CAPITAL TRUST I
------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Imperial
Bancorp, a California corporation (the "Company"), and Imperial Capital Trust I,
a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of April
8, 1997 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on April 8, 1997;
(b) The Declaration of Trust of the Trust, dated as of April
8, 1997, by and among the Company and the trustees of the Trust named therein;
1
<PAGE>
Imperial Capital Trust I
June 18, 1997
Page 2
(c) The Amended and Restated Declaration of Trust of the
Trust, dated as of April 23, 1997 (including Annex I and Exhibits A-1 and B-1
thereto) (the "Declaration"), among the Company, as sponsor, the trustees of the
Trust named therein and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust;
(d) Amendment No. 1 to the Registration Statement on Form S-4
(the "Registration Statement"), including a preliminary prospectus (the
"Prospectus"), relating to the 9.98% Capital Securities of the Trust
representing undivided beneficial interests in the assets of the Trust (each, a
"Capital Security" and collectively, the "Capital Securities"), as proposed to
be filed by the Company and the Trust with the Securities and Exchange
Commission on or about June 18, 1997; and
(e) A Certificate of Good Standing for the Trust dated as of
June 18, 1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and
2
<PAGE>
Imperial Capital Trust I
June 18, 1997
Page 3
that the Declaration and the Certificate are in full force and effect and have
not been amended, (ii) except to the extent provided in paragraph 1 below, the
due creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Capital Security is to be issued by the Trust
(collectively, the "Capital Security Holders") of a certificate (substantially
in the form attached as Exhibit A-1 to the Declaration) evidencing the Capital
Security and the payment for the Capital Security acquired by it, in accordance
with the Declaration and the Registration Statement, and (vii) that the Capital
Securities are issued and sold to the Capital Security Holders in accordance
with the Declaration and the Registration Statement. We have not participated in
the preparation of the Registration Statement and assume no responsibility for
its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Capital Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Capital Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended
to stockholders of private
3
<PAGE>
Imperial Capital Trust I
June 18, 1997
Page 4
corporations for profit organized under the General Corporation Law of the
State of Delaware.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
4
EXHIBIT 5.2
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
June 18, 1997
Imperial Bancorp
9920 South La Cienega Boulevard
Inglewood, CA 90301
Ladies and Gentlemen:
We have acted as counsel to Imperial Bancorp, a California
corporation (the "Company"), in connection with the preparation and filing of a
Registration Statement on Form S-4 (the "Registration Statement") under the
Securities Act of 1933, as amended, with respect to $77,320,000 aggregate
principal amount of 9.98% Series B Junior Subordinated Deferrable Interest
Debentures due December 31, 2027 (the "Debentures") of the Company, $75,000,000
aggregate liquidation amount of 9.98% Series B Capital Securities (the "Capital
Securities") of Imperial Capital Trust I, a business trust created under the
laws of the State of Delaware (the "Trust"), and the guarantee with respect to
the Capital Securities (the "Guarantee") executed and delivered by the Company
for the benefit of the holders from time to time of the Capital Securities.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Prospectus that is a part of the Registration Statement (the "Prospectus"), the
Indenture (the "Indenture"), dated as of April 23, 1997, between the Company and
The Chase Manhattan Bank, as trustee (the "Trustee"), the form of Debenture set
forth in the Indenture, and such corporate records, agreements, documents and
other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made such
inquiries of such officers and representatives of the Company as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been
NYFS04...:\31\53831\0003\1703\OPN5227W.54A
<PAGE>
Imperial Bancorp
June 18, 1997
Page 2
independently established, we have relied upon certificates or comparable
documents of officers and representatives of the Company. We have also assumed
(i) the due incorporation and valid existence of the Company, (ii) that the
Company has the requisite corporate power and authority to enter into and
perform its obligations under the Debentures and the Guarantee and (iii) the due
authorization, execution and delivery of the Debentures and the Guarantee by the
Company.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. The Debentures, when duly executed by the Company, authenticated
by the Trustee pursuant to the terms of the Indenture, and delivered and paid
for in accordance with the terms of the Indenture, and as contemplated by the
Registration Statement, will be validly issued and will constitute the legally
binding obligations of the Company entitled to the benefits of the Indenture, in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
2. The Guarantee constitutes the legally binding obligation of the
Company, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
The opinions herein are limited to the laws of the State of New York
and the corporate laws of the State of Delaware, and we express no opinion as to
the effect on the matters covered by this opinion of the laws of any other
jurisdiction.
The opinions expressed herein are rendered solely for your benefit
in connection with the transactions described herein. Those opinions may not be
used or relied upon by any other person, nor may this letter or any copies
thereof be furnished to a third party, filed with a governmental agency, quoted,
cited or otherwise referred to without our prior written consent.
<PAGE>
Imperial Bancorp
June 18, 1997
Page 3
We understand that you have received an opinion from Richards,
Layton & Finger, LLP, special Delaware counsel for the Company and the Trust. We
are expressing no opinion with respect to the matters contained in such opinion.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. We also consent to any and all references to our firm
under the caption "Legal Matters" in the Prospectus.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
EXHIBIT 8
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
June 18, 1997
Imperial Bancorp
9920 South La Cienega Boulevard
Inglewood, California 90301
Re: $75,000,000 IMPERIAL CAPITAL TRUST I
9.98% SERIES B CAPITAL SECURITIES
-------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Imperial Bancorp, a California
corporation (the "Depositor"), and Imperial Capital Trust I, a Delaware business
trust (the "Trust"), in connection with (i) the preparation and filing with the
Securities and Exchange Commission (the "Commission")of the Registration
Statement on Form S-4, as amended to the date hereof (the "Registration
Statement") under the Securities Act of 1933, as amended, and of the Prospectus
that is a part thereof (the "Prospectus") with respect to $75,000,000 Imperial
Capital Trust I 9.98% Capital Securities (the "Capital Securities") and (ii) the
Exchange Offer of Capital Securities specified in the Prospectus. All
capitalized terms not otherwise defined herein shall have the same meaning
ascribed thereto in the Prospectus.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Prospectus, the Trust Agreement, the forms of Capital Securities and Common
Securities, the forms of Indenture, Guarantee and the Common Guarantee Agreement
(collectively, the "Agreements"). In addition, we have examined originals or
copies, certified or otherwise identified to our satisfaction of such corporate
records, agreements, documents and other instruments, and
NYFS04...:\31\53831\0003\2051\OPN5147N.060
<PAGE>
Imperial Bancorp
June 18, 1997
Page 2
have made such inquiries of such officers and representatives of the Depositor,
as we have deemed relevant and necessary as a basis for the opinion hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such latter
documents. We have further assumed (i) that the Capital Securities as executed
and delivered by the requisite signatories thereto will conform in substance and
form in all material respects to the respective forms thereof examined by us,
(ii) timely compliance by all parties to the Agreements to the terms thereof
(without waiver or amendment of any of the terms thereof) and (iii) that the
Agreements constitute all the agreements, arrangements and understandings
between the parties thereto with respect to the transactions contemplated
therein and that the representations and warranties contained therein are true.
The terms of the Agreements and the Capital Securities are
incorporated herein by reference.
Based on the foregoing, it is our opinion that the statements
contained in the Prospectus, under the caption "Certain Federal Income Tax
Considerations", insofar as such statements constitute matters of law or legal
conclusions and except to the extent qualified therein, are correct in all
material respects.
The foregoing opinion is based on current provisions of the Internal
Revenue Code of 1986, as amended, the Treasury Regulations promulgated
thereunder (including proposed Treasury Regulations), published pronouncements
of the Internal Revenue Service, and case law, any of which may be changed at
any time with retroactive effect. We express no opinion as to the effect on the
matters covered by this opinion of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement and to the references to our firm
under the captions "Certain Federal Income Tax Considerations" and "Legal
Matters" in the Prospectus. This opinion may not be used for any other purpose
and may not otherwise be relied upon by, or disclosed to, any other person,
quoted or referred to.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Exhibit 12
----------
<TABLE>
<CAPTION>
PRO-FORMA REMAINING BANK
------------------------
QUARTER QUARTER YEAR
ENDED YEAR ENDED DECEMBER 31, ENDED ENDED
MARCH 31, -------------------------------------- MARCH 31 DECEMBER 31,
1997 1996 1995 1994 1993 1992 1997 1996
---- ---- ---- ---- ---- ---- ---- ----
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RATIO OF EARNINGS TO FIXED CHARGES:
EXCLUDING INTEREST ON DEPOSITS 7.65X 13.64X 4.87X 2.04X -(1) 3.21X 7.93X 8.20X
INCLUDING INTEREST ON DEPOSITS 1.62X 2.04X 1.43X 1.18X -(1) 1.23X 1.62X 1.57X
COMPUTATION:
NET INCOME BEFORE INCOME TAXES FROM
CONTINUING OPERATIONS 13,286 105,580 31,725 10,590 960 23,943 11,814 39,826
LESS UNDISTRIBUTED INCOME FROM ICII 1,461 32,205 5,192 3,489 7,898 - - -
TOTAL INTEREST EXPENSE 18,572 68,054 60,154 37,415 36,280 101,683 18,572 68,054
PORTION OF RENT EXPENSE THAT REPRESENTS
THE INTEREST FACTOR 561 2,301 2,192 2,581 2,773 2,933 489 2,029
INCOME AS ADJUSTED INCLUDING INTEREST
EXPENSE 30,958 143,730 88,879 47,097 32,115 128,559 30,875 109,909
LESS INTEREST ON DEPOSITS 17,355 64,551 55,491 33,184 31,072 93,795 17,355 64,551
INCOME AS ADJUSTED EXCLUDING INTEREST
ON DEPOSITS 13,603 79,179 33,388 13,913 1,0433 4,764 13,520 45,358
TOTAL INTEREST EXPENSE 18,572 68,054 60,154 37,415 36,280 101,683 18,572 68,054
PORTION OF RENT EXPENSE THAT REPRESENTS
THE INTEREST FACTOR 561 2,301 2,192 2,581 2,773 2,933 489 2,029
TOTAL FIXED CHARGES INCLUDING INTEREST
ON DEPOSITS 19,133 70,355 62,346 39,996 39,053 104,616 19,061 70,083
LESS INTEREST ON DEPOSITS 17,355 64,551 55,491 33,184 31,072 93,795 17,355 64,551
TOTAL FIXED CHARGES EXCLUDING INTEREST
ON DEPOSITS 1,778 5,804 6,855 6,812 7,981 10,821 1,706 5,532
</TABLE>
- ------------------------
(1) EARNINGS WERE INADEQUATE TO COVER FIXED CHARGES IN 1993 BY $6.9 MILLION.
NYFS04...:\31\53831\0003\1703\TBL6137D.520
EXHIBIT 23.1
The Board of Directors
Imperial Bancorp:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the headings "Selected Consolidated Financial Data
of Imperial Bancorp" and "Experts" in the prospectus.
KPMG PEAT MARWICK LLP
Los Angeles, California
June 17, 1997
NYFS04...:\31\53831\0003\1703\LTR6137E.360
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
IMPERIAL BANCORP
(Exact name of obligor as specified in its charter)
CALIFORNIA 95-2575576
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
9920 SOUTH LA CIENEGA BOULEVARD
INGLEWOOD, CALIFORNIA 90301
(Address of principal executive offices) (Zip Code)
------------------------------------------------------------------
9.98% SERIES B JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE DECEMBER 31, 2026
(Title of the indenture securities)
------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4
to Form T-1 filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22ND day of MAY, 1997.
THE CHASE MANHATTAN BANK
By /s/R. Lorenzen
-------------------------
R. Lorenzen
Senior Trust Officer
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1997, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 11,721
Interest-bearing balances .................................... 3,473
Securities: ......................................................
Held to maturity securities........................................ 2,965
Available for sale securities...................................... 35,903
Federal Funds sold and securities purchased under
agreements to resell ......................................... 24,025
Loans and lease financing receivables:
Loans and leases, net of unearned income...................... $123,957
Less: Allowance for loan and lease losses .................... 2,853
Less: Allocated transfer risk reserve ........................ 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................................... 121,091
Trading Assets .................................................... 54,340
Premises and fixed assets (including capitalized
leases)............................................................ 2,875
Other real estate owned ........................................... 302
Investments in unconsolidated subsidiaries and
associated companies.......................................... 139
Customers' liability to this bank on acceptances
outstanding .................................................. 2,270
Intangible assets ................................................. 1,535
Other assets ...................................................... 10,283
TOTAL ASSETS ...................................................... $270,922
========
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................... $84,776
Noninterest-bearing ........................................... $32,492
Interest-bearing .............................................. 52,284
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ..................................................... 69,171
Noninterest-bearing ........................................... $ 4,181
Interest-bearing .............................................. 64,990
Federal funds purchased and securities sold under agree-
ments to repurchase ................................................ 32,885
Demand notes issued to the U.S. Treasury ........................... 1,000
Trading liabilities ................................................ 42,538
Other Borrowed money (includes mortgage indebtedness and obligations
under calitalized leases):
With a remaining maturity of one year or less ................. 4,431
With a remaining maturity of more than one year .................... 466
Bank's liability on acceptances executed and outstanding............ 2,270
Subordinated notes and debentures .................................. 5,911
Other liabilities
.................................................................... 11,575
TOTAL LIABILITIES .................................................. 255,023
EQUITY CAPITAL
Perpetual Preferred stock and related surplus
Common stock ....................................................... 0
1,211
Surplus (exclude all surplus related to preferred stock)........... 10,283
Undivided profits and capital reserves ............................. 4,941
Net unrealized holding gains (Losses)
on available-for-sale securities ................................... (552)
Cumulative foreign currency translation adjustments ................ 16
TOTAL EQUITY CAPITAL ............................................... 15,899
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ...................................... $270,922
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
Imperial Capital Trust I
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
9920 South La Cienega Boulevard
Inglewood, California 90301
(Address of principal executive offices) (Zip Code)
__________________________________________________
9.98% Series B Capital Securities
(Title of the indenture securities)
____________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of May, 1997.
THE CHASE MANHATTAN BANK
By /s/R. Lorenzen
------------------------------
R. Lorenzen
Senior Trust Officer
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1997, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 11,721
Interest-bearing balances .................................... 3,473
Securities: ......................................................
Held to maturity securities........................................ 2,965
Available for sale securities...................................... 35,903
Federal Funds sold and securities purchased under
agreements to resell ......................................... 24,025
Loans and lease financing receivables:
Loans and leases, net of unearned income...................... $123,957
Less: Allowance for loan and lease losses .................... 2,853
Less: Allocated transfer risk reserve ........................ 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................................... 121,091
Trading Assets .................................................... 54,340
Premises and fixed assets (including capitalized
leases)............................................................ 2,875
Other real estate owned ........................................... 302
Investments in unconsolidated subsidiaries and
associated companies.......................................... 139
Customers' liability to this bank on acceptances
outstanding .................................................. 2,270
Intangible assets ................................................. 1,535
Other assets ...................................................... 10,283
TOTAL ASSETS ...................................................... $270,922
========
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................... $84,776
Noninterest-bearing ........................................... $32,492
Interest-bearing .............................................. 52,284
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ..................................................... 69,171
Noninterest-bearing ........................................... $ 4,181
Interest-bearing .............................................. 64,990
Federal funds purchased and securities sold under agree-
ments to repurchase ................................................ 32,885
Demand notes issued to the U.S. Treasury ........................... 1,000
Trading liabilities ................................................ 42,538
Other Borrowed money (includes mortgage indebtedness and obligations
under calitalized leases):
With a remaining maturity of one year or less ................. 4,431
With a remaining maturity of more than one year .................... 466
Bank's liability on acceptances executed and outstanding............ 2,270
Subordinated notes and debentures .................................. 5,911
Other liabilities
.................................................................... 11,575
TOTAL LIABILITIES .................................................. 255,023
EQUITY CAPITAL
Perpetual Preferred stock and related surplus
Common stock ....................................................... 0
1,211
Surplus (exclude all surplus related to preferred stock)........... 10,283
Undivided profits and capital reserves ............................. 4,941
Net unrealized holding gains (Losses)
on available-for-sale securities ................................... (552)
Cumulative foreign currency translation adjustments ................ 16
TOTAL EQUITY CAPITAL ............................................... 15,899
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ...................................... $270,922
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------------------------------------------
Imperial Bancorp
(Exact name of obligor as specified in its charter)
California 95-2575576
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
9920 South La Cienega Boulevard
Inglewood, California 90301
(Address of principal executive offices) (Zip Code)
_____________________________________________________
Series B Capital Securities Guarantee
(Imperial Capital Trust I)
(Title of the indenture securities)
______________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 22nd day of May, 1997.
THE CHASE MANHATTAN BANK
By /s/R. Lorenzen
---------------------------------
R. Lorenzen
Senior Trust Officer
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1997, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................ $ 11,721
Interest-bearing balances .................................... 3,473
Securities: ......................................................
Held to maturity securities........................................ 2,965
Available for sale securities...................................... 35,903
Federal Funds sold and securities purchased under
agreements to resell ......................................... 24,025
Loans and lease financing receivables:
Loans and leases, net of unearned income...................... $123,957
Less: Allowance for loan and lease losses .................... 2,853
Less: Allocated transfer risk reserve ........................ 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................................... 121,091
Trading Assets .................................................... 54,340
Premises and fixed assets (including capitalized
leases)............................................................ 2,875
Other real estate owned ........................................... 302
Investments in unconsolidated subsidiaries and
associated companies.......................................... 139
Customers' liability to this bank on acceptances
outstanding .................................................. 2,270
Intangible assets ................................................. 1,535
Other assets ...................................................... 10,283
TOTAL ASSETS ...................................................... $270,922
========
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................... $84,776
Noninterest-bearing ........................................... $32,492
Interest-bearing .............................................. 52,284
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ..................................................... 69,171
Noninterest-bearing ........................................... $ 4,181
Interest-bearing .............................................. 64,990
Federal funds purchased and securities sold under agree-
ments to repurchase ................................................ 32,885
Demand notes issued to the U.S. Treasury ........................... 1,000
Trading liabilities ................................................ 42,538
Other Borrowed money (includes mortgage indebtedness and obligations
under calitalized leases):
With a remaining maturity of one year or less ................. 4,431
With a remaining maturity of more than one year .................... 466
Bank's liability on acceptances executed and outstanding............ 2,270
Subordinated notes and debentures .................................. 5,911
Other liabilities
.................................................................... 11,575
TOTAL LIABILITIES .................................................. 255,023
EQUITY CAPITAL
Perpetual Preferred stock and related surplus
Common stock ....................................................... 0
1,211
Surplus (exclude all surplus related to preferred stock)........... 10,283
Undivided profits and capital reserves ............................. 4,941
Net unrealized holding gains (Losses)
on available-for-sale securities ................................... (552)
Cumulative foreign currency translation adjustments ................ 16
TOTAL EQUITY CAPITAL ............................................... 15,899
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ...................................... $270,922
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
EXHIBIT 99.1
LETTER OF TRANSMITTAL
IMPERIAL CAPITAL TRUST I
OFFER TO EXCHANGE ITS
9.98% SERIES B CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
9.98% SERIES A CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED _______________, 1997
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON ________ __, 1997
UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Chase Manhattan Bank
(the "Exchange Agent")
By Mail, Hand or Overnight Delivery:
The Chase Manhattan Bank
55 Water Street
Room 234, North Building
New York, New York 10041
Attention: Carlos Esteves
By Facsimile Transmission:
(212) 638-7375
(212) 344-9367
CONFIRM BY TELEPHONE:
Carlos Esteves: (212) 638-0828
NYFS04...:\31\53831\0003\1703\EXH5217U.10B
<PAGE>
Delivery of this Letter of Transmittal to an address other than as set
forth above or transmission of this Letter of Transmittal via a facsimile number
other than the ones listed above will not constitute a valid delivery. The
instructions accompanying this Letter of Transmittal (the "Letter of
Transmittal") should be read carefully before this Letter of Transmittal is
completed.
The undersigned hereby acknowledges receipt of the Prospectus dated
__________, 1997 (the "Prospectus") of Imperial Capital Trust I (the "Trust")
and this Letter of Transmittal, which together constitute the Trust's offer (the
"Exchange Offer") to exchange up to $75,000,000 aggregate liquidation amount of
its 9.98% Series B Capital Securities (liquidation amount $1,000 per Capital
Security) (the "New Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement on Form S-4 of Imperial Bancorp (the "Company") and the
Trust (File Nos. 333-27019 and 333-27019-01), of which the Prospectus is a part,
for a like liquidation amount of its outstanding 9.98% Series A Capital
Securities (liquidation amount $1,000 per Capital Security) (the "Old Capital
Securities"), of which $75,000,000 aggregate liquidation amount is outstanding.
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
__________, 1997, unless the Exchange Offer is extended, in which case the term
"Expiration Date" means the latest date and time to which the Exchange Offer is
extended. Capitalized terms used but not defined herein have the meaning given
to them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
This Letter of Transmittal is to be completed by holders of Old Capital
Securities either if (i) Old Capital Securities are to be forwarded herewith or
(ii) tenders of Old Capital Securities are to be made by book-entry transfer to
an account maintained by the Exchange Agent at The Depository Trust Company
("DTC") pursuant to the procedures set forth under "The Exchange Offer --
Procedures for Tendering Old Capital Securities" in the Prospectus and an
Agent's Message (as defined herein) is not delivered.
Holders of Old Capital Securities whose certificates (the
"Certificates") for such Old Capital Securities are not immediately available or
who cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date or who cannot complete the
procedures for book-entry transfer on or prior to the Expiration Date, must
tender their Old Capital Securities according to the guaranteed delivery
procedures set forth in "The Exchange Offer Procedures for Tendering Old Capital
Securities" in the Prospectus.
2
<PAGE>
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- ----------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE AGGREGATE
NUMBER(S)* LIQUIDATION AMOUNT LIQUIDATION AMOUNT NUMBER OF
(ATTACH OF OLD CAPITAL OF OLD CAPITAL BENEFICIAL HOLDERS
NAME(S) AND ADDRESS(ES) OF ADDITIONAL SECURITIES (ATTACH SECURITIES (IF FOR WHOM OLD
REGISTERED HOLDER LIST IF ADDITIONAL LIST IF LESS THAN ALL)** CAPITAL SECURITIES
(PLEASE FILL IN, IF BLANK) NECESSARY) NECESSARY) ARE HELD
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
$ $
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT TENDERED: $ $
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders. Such holders should check
the appropriate box below and provide the requested information.
** Need not be completed if tendering for exchange all Old Capital Securities
held. Old Capital Securities may be tendered in whole or in part in
denominations of $100,000 and integral multiples of $1,000 in excess
thereof, provided that if any Old Capital Securities are tendered for
exchange in part, the untendered Liquidation Amount thereof must be
$100,000 or any integral multiple of $1,000 in excess thereof. All Old
Capital Securities held shall be deemed tendered unless a lesser number is
specified in this column.
- --------------------------------------------------------------------------------
3
<PAGE>
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS (DEFINED IN
INSTRUCTION 1) ONLY)
[ ] CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE
AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
--------------------------------------------------
DTC Account Number:
-------------------------------------------------------------
Transaction Code Number:
--------------------------------------------------------
By crediting the Old Capital Securities to the Exchange Agent's account
at DTC in accordance with DTC's Automated Tender Offer Program ("ATOP") and by
complying with applicable ATOP procedures with respect to the Exchange Offer,
including transmitting an Agent's Message to the Exchange Agent in which the
holder of the Old Capital Securities acknowledges and agrees to be bound by the
terms of this Letter of Transmittal, the participant in ATOP confirms on behalf
of itself and the beneficial owners of such Old Capital Securities all
provisions of this Letter of Transmittal applicable to it and such beneficial
owners as fully as if it had completed the information required herein and
executed and transmitted this Letter of Transmittal to the Exchange Agent.
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name of Registered Holder:
------------------------------------------------------
Window Ticket Number (if any):
--------------------------------------------------
Date of Execution of
Notice of Guaranteed Delivery:
--------------------------------------------------
Name of Institution which
Guaranteed Delivery:
------------------------------------------------------------
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution:
--------------------------------------------------
DTC Account Number:
-------------------------------------------------------------
Transaction Code Number:
--------------------------------------------------------
4
<PAGE>
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD
CAPITAL SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT
NUMBER SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING
ACTIVITIES (AN "EXCHANGING DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
---------------------------------------------------------------------------
Address:
------------------------------------------------------------------------
Area Code and Telephone Number:
-------------------------------------------------
Contact Person:
-----------------------------------------------------------------
5
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Imperial Capital Trust I, a Delaware
statutory business trust (the "Trust"), the above-described aggregate
liquidation amount of the Trust's 9.98% Series A Capital Trust Securities (the
"Old Capital Securities") in exchange for a like aggregate liquidation amount of
the Trust's 9.98% Series B Capital Securities (the "New Capital Securities")
which have been registered under the Securities Act of 1933 (the "Securities
Act"), upon the terms and subject to the conditions set forth in the Prospectus
dated _______________, 1997 (as the same may be amended or supplemented from
time to time, the "Prospectus"), receipt of which is acknowledged, and in this
Letter of Transmittal (which, together with the Prospectus, constitutes the
"Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Capital Securities tendered herewith in accordance with the
terms and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Trust all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company and the Trust in connection with the Exchange Offer) with respect to the
tendered Old Capital Securities, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an interest),
subject only to the right of withdrawal described in the Prospectus to (i)
deliver Certificates for Old Capital Securities to the Trust together with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Trust, upon receipt by the Exchange Agent, as the undersigned's agent, of
the New Capital Securities to be issued in exchange for such Old Capital
Securities, (ii) present Certificates for such Old Capital Securities for
registration of transfer, and to transfer the Old Capital Securities on the
books of the Trust, and (iii) receive for the account of the Trust all benefits
and otherwise exercise all rights of beneficial ownership of such Old Capital
Securities, all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR, EXCEPT AS DESCRIBED ABOVE, PROXIES. THE UNDERSIGNED WILL,
UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE
COMPANY, THE TRUST OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO
COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD CAPITAL SECURITIES
TENDERED HEREBY, AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE
REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE
TERMS OF THE EXCHANGE OFFER.
6
<PAGE>
The name and address of the registered holder of the Old Capital
Securities tendered hereby should be printed above, if they are not already set
forth above, as they appear on the Certificates representing such Old Capital
Securities. The Certificate numbers and the Old Capital Securities that the
undersigned wishes to tender should be indicated in the appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for more Old
Capital Securities than are tendered or accepted for exchange, Certificates for
such nonexchanged or nontendered Old Capital Securities will be returned (or, in
the case of Old Capital Securities tendered by book-entry transfer, such Old
Capital Securities will be credited to an account maintained at DTC), without
expense to the tendering holder, promptly following the expiration or
termination of the Exchange Offer.
The undersigned understands that tenders of Old Capital Securities
pursuant to any one of the procedures described under "The Exchange Offer -
Procedures for Tendering Old Capital Securities" in the Prospectus and in the
instructions herein will, upon the Company's and the Trust's acceptance for
exchange of such tendered Old Capital Securities, constitute a binding agreement
between the undersigned, the Company and the Trust upon the terms and subject to
the conditions of the Exchange Offer. The undersigned recognizes that, under
certain circumstances set forth in the Prospectus, the Company and the Trust may
not be required to accept for exchange any of the Old Capital Securities
tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Capital
Securities be issued in the name of the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, that such New Capital Securities
be credited to the account indicated above maintained at DTC. If applicable,
substitute Certificates representing Old Capital Securities not exchanged or not
accepted for exchange will be issued to the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, will be credited to the account
indicated above maintained at DTC. Similarly, unless otherwise indicated under
"Special Delivery Instructions" below, please deliver New Capital Securities to
the undersigned at the address shown below the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (i) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE COMPANY OR THE TRUST WITHIN THE MEANING
OF RULE 405 UNDER THE SECURITIES ACT, (ii) ANY NEW CAPITAL SECURITIES TO BE
RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY COURSE OF ITS
BUSINESS, AND (iii) THE UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY
PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES
ACT) OF NEW CAPITAL SECURITIES TO BE RECEIVED IN THE EXCHANGE OFFER. IF THE
UNDERSIGNED IS A BROKER-DEALER THAT WILL RECEIVE NEW CAPITAL SECURITIES FOR ITS
OWN ACCOUNT IN EXCHANGE FOR OLD CAPITAL SECURITIES THAT WERE ACQUIRED AS A
RESULT OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, IT ACKNOWLEDGES
THAT IT WILL DELIVER A PROSPECTUS MEETING THE REQUIREMENTS OF THE SECURITIES ACT
IN CONNECTION WITH ANY RESALES OF SUCH NEW CAPITAL
7
<PAGE>
SECURITIES; HOWEVER, BY SO ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS,
THE UNDERSIGNED WILL NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER"
WITHIN THE MEANING OF THE SECURITIES ACT.
THE COMPANY AND THE TRUST HAVE AGREED THAT, SUBJECT TO THE PROVISIONS
OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY AN EXCHANGING DEALER IN
CONNECTION WITH RESALES OF NEW CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR OLD
CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH
EXCHANGING DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR
OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING NINETY DAYS AFTER THE EXPIRATION
DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE
PROSPECTUS). IN THAT REGARD, EACH EXCHANGING DEALER WHO ACQUIRED OLD CAPITAL
SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING
ACTIVITIES, BY TENDERING SUCH OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER
OF TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY OR THE
TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES
ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN
ANY MATERIAL RESPECT OR WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY
REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING, OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE
REGISTRATION RIGHTS AGREEMENT, SUCH EXCHANGING DEALER WILL SUSPEND THE SALE OF
NEW CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE COMPANY OR THE TRUST
HAS AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH MISSTATEMENT OR
OMISSION AND HAS FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED PROSPECTUS TO
THE EXCHANGING DEALER, OR THE COMPANY OR THE TRUST HAS GIVEN NOTICE THAT THE
SALE OF THE NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE. IF THE
COMPANY OR THE TRUST GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE NEW CAPITAL
SECURITIES, IT SHALL EXTEND THE NINETY DAYS PERIOD REFERRED TO ABOVE DURING
WHICH EXCHANGING DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN CONNECTION WITH
THE RESALE OF NEW CAPITAL SECURITIES BY THE NUMBER OF DAYS DURING THE PERIOD
FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND INCLUDING THE
DATE WHEN EXCHANGING DEALERS SHALL HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR
AMENDED PROSPECTUS NECESSARY TO PERMIT RESALES OF THE NEW CAPITAL SECURITIES OR
TO AND INCLUDING THE DATE ON WHICH THE COMPANY OR THE TRUST HAS GIVEN NOTICE
THAT THE SALE OF NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated distributions on such Old
Capital Securities for any period from and after the last Distribution Payment
Date to which distributions have been paid or duly provided for on such Old
8
<PAGE>
Capital Securities prior to the original issue date of the New Capital
Securities or, if no such distributions have been paid or duly provided for,
will not receive any accrued distributions on such Old Capital Securities, and
the undersigned waives the right to receive any interest on such Old Capital
Securities accrued from and after such Distribution Payment Date or, if no such
distributions have been paid or duly provided for, from and after April 23,
1997.
All authority herein conferred or agreed to be conferred in this Letter
of Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
9
<PAGE>
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 CONTAINED HEREIN)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY
INSTRUCTION 2)
Must be signed by registered holder exactly as name appears on
Certificate for the Old Capital Securities hereby tendered or on a security
position listing, or by any person authorized to become the registered holder by
endorsements and documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required by the Trust or
the Administrative Trustees for the Old Capital Securities to comply with the
restrictions on transfer applicable to the Old Capital Securities). If signature
is by an attorney-in-fact, executor, administrator, trustee, guardian, officer
of a corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
------------------------------
------------------------------
(Signature of Holder(s) or
Authorized Signatory)
Date: _______________________________, 1997
Name(s):
--------------------------------------------
--------------------------------------------
(Please Print)
Capacity (full title):
------------------------------
Address:
--------------------------------------------
--------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
---------------------
Tax Identification or Social Security Number:
-------
10
<PAGE>
- --------------------------------------------------------------------------------
SIGNATURE GUARANTEE
(IF REQUIRED -- SEE INSTRUCTIONS 2 AND 5)
-------------------------------
(Authorized Signature)
Date: , 1997
-------------------------
Name of Eligible Institution Guaranteeing Signatures:
---------------------------
Capacity (full title):
----------------------------------------------------------
(Please Print)
Address:
------------------------------------------------------------------------
------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
-------------------------------------------------
- --------------------------------------------------------------------------------
11
<PAGE>
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities or any Old Capital Securities
that are not tendered are to be issued in the name of someone other than the
registered holder of the Old Capital Securities whose name appears above.
Issue
[ ] New Capital Securities and/or
[ ] Old Capital Securities not tendered
to:
Name:
--------------------------------------------------------
Address:
-----------------------------------------------------
-----------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
------------------------------
Tax Identification or Social Security Number:
----------------
- --------------------------------------------------------------------------------
12
<PAGE>
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities or any Old Capital Securities
that are not tendered are to be sent to someone other than the registered holder
of the Old Capital Securities whose name appears above, or to such registered
holder at an address other than that shown above.
Issue
[ ] New Capital Securities and/or
[ ] Old Capital Securities not tendered
to:
Name:
--------------------------------------------------------
Address:
-----------------------------------------------------
-----------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
------------------------------
Tax Identification or Social Security Number:
----------------
- --------------------------------------------------------------------------------
13
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES;
GUARANTEED DELIVERY PROCEDURES. This Letter of Transmittal is to be completed
either if (a) Certificates are to be forwarded herewith or (b) tenders are to be
made pursuant to the procedures for tender by book-entry transfer set forth
under "The Exchange Offer - Procedures for Tendering Old Capital Securities" in
the Prospectus and an Agent's Message is not delivered. Certificates, or
book-entry confirmation of a book-entry transfer of such Old Capital Securities
into the Exchange Agent's account at DTC, as well as this Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
herein on or prior to the Expiration Date. Tenders by book-entry transfer may
also be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "book-entry confirmation" means a timely confirmation of
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
Participant, which acknowledgment states that such Participant has received and
agrees to be bound by the Letter of Transmittal and that the Trust and the
Company may enforce the Letter of Transmittal against such Participant. Old
Capital Securities may be tendered in whole or in part in the liquidation amount
of $100,000 (100 Capital Securities) and integral multiples of $1,000 in excess
thereof, provided that, if any Old Capital Securities are tendered for exchange
in part, the untendered liquidation amount thereof must be $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose
Old Capital Securities are not immediately available or (ii) who cannot deliver
their Old Capital Securities, this Letter of Transmittal and all other required
documents to the Exchange Agent on or prior to the Expiration Date or (iii) who
cannot complete the procedures for delivery by book-entry transfer on or prior
to the Expiration Date, may tender their Old Capital Securities by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth under "The Exchange Offer - Procedures
for Tendering Old Capital Securities" in the Prospectus. Pursuant to such
procedures: (i) such tender must be made by or through an Eligible Institution
(as defined below); (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form made available by the Company and
the Trust, must be received by the Exchange Agent on or prior to the Expiration
Date; and (iii) the Certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with a
Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof),
properly completed and duly executed, with any required signature guarantees and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent within three New York Stock Exchange trading days after the
date of execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer - Procedures for Tendering Old Capital Securities" in the
Prospectus.
14
<PAGE>
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such Notice. For
Old Capital Securities to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the Expiration Date. As used herein and in the
Prospectus, "Eligible Institution" means a financial institution (including most
banks, savings and loan associations and brokerage houses) that is a participant
in the Securities Transfer Agent Medallion Program, the New York Stock Exchange
Medallion Program or the Stock Exchange Medallion Program.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE
TENDERING HOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY
RECEIVED BY THE EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN
RECEIPT REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY ON OR PRIOR TO THE EXPIRATION DATE. NO DOCUMENTS SHOULD BE SENT TO THE
COMPANY OR THE TRUST. DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY
TO THE EXCHANGE AGENT.
Neither the Company nor the Trust will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof),
waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered
holder (which term, for purposes of this document, shall include any
Participant in DTC whose name appears on a security position listing
as the owner of the Old Capital Securities) of Old Capital Securities
tendered herewith, unless such holder has completed either the box
entitled "Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account
of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities Tendered" is inadequate, the Certificate
numbers and/or the liquidation amount of Old Capital Securities and any other
required information should be listed on a separate signed schedule which is
attached to this Letter of Transmittal.
15
<PAGE>
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the liquidation amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered liquidation amount thereof must be $100,000 (100 Capital Securities)
or any integral multiple of $1,000 in excess thereof. If less than all of the
Old Capital Securities evidenced by any Certificate submitted are to be
tendered, fill in the liquidation amount of Old Capital Securities which are to
be tendered in the box entitled "Liquidation Amount of Old Capital Securities
(If Less than All)." In such case, a new Certificate for the remainder of the
Old Capital Securities that were evidenced by your Old Certificate will be sent
to the holder of the Old Capital Securities, promptly after the Expiration Date
unless the appropriate boxes on this Letter of Transmittal are completed. All
Old Capital Securities represented by Certificates delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Capital
Securities may be withdrawn at any time on or prior to the Expiration Date. In
order for a withdrawal to be effective, a written or facsimile transmission of
such notice of withdrawal must be timely received by the Exchange Agent at its
address set forth above or in the Prospectus on or prior to the Expiration Date.
Any such notice of withdrawal must specify the name of the person who tendered
the Old Capital Securities to be withdrawn, the aggregate liquidation amount of
Old Capital Securities to be withdrawn, and (if Certificates for Old Capital
Securities have been tendered) the name of the registered holder of the Old
Capital Securities as set forth on the Certificate for the Old Capital
Securities, if different from that of the person who tendered such Old Capital
Securities. If Certificates for the Old Capital Securities have been delivered
or otherwise identified to the Exchange Agent, then prior to the physical
release of such Certificates for the Old Capital Securities, the tendering
holder must submit the serial numbers shown on the particular Certificates for
the Old Capital Securities to be withdrawn and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution, except in the case of
Old Capital Securities tendered for the account of an Eligible Institution. If
Old Capital Securities have been tendered pursuant to the procedures for
book-entry transfer set forth under "The Exchange Offer -- Procedures for
Tendering Old Capital Securities," the notice of withdrawal must specify the
name and number of the account at DTC to be credited with the withdrawal of Old
Capital Securities, in which case a notice of withdrawal will be effective if
delivered to the Exchange Agent by written or facsimile transmission on or prior
to the Expiration Date. Withdrawals of tenders of Old Capital Securities may not
be rescinded. Old Capital Securities properly withdrawn will not be deemed
validly tendered for purposes of the Exchange Offer, but may be retendered at
any subsequent time on or prior to the Expiration Date by following any of the
procedures described in the Prospectus under "The Exchange Offer - Procedures
for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including
time of receipt) of such withdrawal notices will be determined by the Company or
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Neither the Company or the Trust, any affiliates or
assigns of the Company or the Trust, the Exchange Agent nor any other person
shall be under any duty to give any notification of any irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification. Any Old Capital Securities which have been tendered but which are
withdrawn on or prior to the Expiration Date will be returned to the holder
thereof without cost to such holder promptly after withdrawal.
16
<PAGE>
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder
of the Old Capital Securities tendered hereby, the signature must correspond
exactly with the name as written on the face of the Certificates or on a
security position listing without alteration, enlargement or any change
whatsoever.
If any of the Old Capital Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If any tendered Old Capital Securities are registered in different
names on several Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal (or facsimiles thereof or Agent's
Messages in lieu thereof) as there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Company and the Trust, in their sole discretion, of
such persons' authority to so act.
When this Letter of Transmittal is signed by the registered owner of
the Old Capital Securities listed and transmitted hereby, no endorsement of
Certificates or separate bond powers are required unless New Capital Securities
are to be issued in the name of a person other than the registered holder.
Signatures on such Certificates or bond powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner of the Old Capital Securities listed, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
of the registered owner appears on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company, the Trust or the Exchange Agent may require in accordance with the
restrictions on transfer applicable to the Old Capital Securities. Signatures on
such Certificates or bond powers must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Capital
Securities are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if New Capital Securities are to be sent to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Certificates for Old Capital Securities not exchanged will
be returned by mail or, if tendered by book-entry transfer, by crediting the
account indicated above maintained at DTC unless the appropriate boxes on this
Letter of Transmittal are completed. See Instruction 4.
7. IRREGULARITIES. The Company and the Trust will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities, which determination shall be final and binding
on all parties. The Company and the Trust reserve the absolute right to reject
any and all tenders determined by either of them not to be in proper form or the
acceptance of which, or exchange for,
17
<PAGE>
may, in the view of counsel to the Company or the Trust, be unlawful. The
Company and the Trust also reserve the absolute right, subject to applicable
law, to waive any of the conditions of the Exchange Offer set forth in the
Prospectus under "The Exchange Offer - Conditions to the Exchange Offer," or any
conditions or irregularities in any tender of Old Capital Securities of any
particular holder whether or not similar conditions or irregularities are waived
in the case of other holders. The Company and the Trust's interpretation of the
terms and conditions of the Exchange Offer (including this Letter of Transmittal
and the instructions hereto) will be final and binding. No tender of Old Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. The Company, the Trust,
any affiliates or assigns of the Company, the Trust, the Exchange Agent, or any
other person shall not be under a duty to give notification of any
irregularities in tenders or incur any liability for failure to give such
notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificates
representing Old Capital Securities have been lost, destroyed or stolen, the
holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificates. This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificates have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, New Capital Securities are to be delivered
to, or are to be issued in the name of, any person other than the registered
holder of the Old Capital Securities tendered, or if a transfer tax is imposed
for any reason other than the exchange of Old Capital Securities in connection
with the Exchange Offer, then the amount of any such transfer tax (whether
imposed on the registered holder or any other persons) will be payable by the
tendering holder. If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
11. INCORPORATION OF LETTER OF TRANSMITTAL. This Letter of
Transmittal shall be deemed to be incorporated in and acknowledged and accepted
by any tender through the DTC's ATOP procedures by any participant in DTC on
behalf of itself and the beneficial owners of any Old Capital Securities so
tendered.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF OR AN
AGENT'S MESSAGE IN LIEU HEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE
RECEIVED BY THE EXCHANGE AGENT AT OR PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON
THE EXPIRATION DATE.
18
<PAGE>
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Old Capital
Securities are accepted for exchange is required by law to provide the Exchange
Agent with such holder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 included herein or otherwise establish a basis for exemption
from backup withholding. If such holder is an individual, the TIN is his social
security number. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service may subject the holder or transferee to a $50 penalty.
In addition, delivery of such holder's New Capital Securities may be subject to
backup withholding. Failure to comply truthfully with the backup withholding
requirements also may result in the imposition of severe criminal and/or civil
fines and penalties.
Certain holders (including, among others, all corporations and
certain foreign persons) are not subject to these backup withholding and
reporting requirements. Exempt holders should write "Exempt" on the face of the
Substitute Form W-9, and sign, date and return the Substitute Form W-9 to the
Exchange Agent. A foreign person, including entities, may qualify as an exempt
recipient by submitting to the Exchange Agent a properly completed Internal
Revenue Service Form W-8, signed under penalties of perjury, attesting to that
holder's foreign status. See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for additional
instructions.
If backup withholding applies, the Exchange Agent is required to
withhold 31% of any payments made to the holder or other transferee. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to Old
Capital Securities exchanged in the Exchange Offer, the holder is required to
provide the Exchange Agent with either: (i) the holder's correct TIN by
completing the form included herein, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such holder is awaiting a TIN) and that
(A) the holder has not been notified by the Internal Revenue Service that the
holder is subject to backup withholding as a result of failure to report all
interest or dividends or (B) the Internal Revenue Service has notified the
holder that the holder is no longer subject to backup withholding; or (ii) an
adequate basis for exemption.
NUMBER TO GIVE THE DEPOSITARY
The holder is required to give the Exchange Agent the TIN (e.g.,
social security number or employer identification number) of the registered
holder of the Old Capital Securities. If the Old Capital Securities are held in
more than one name or are held not in the name of the actual owner, consult the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which number to report.
19
<PAGE>
EXCHANGE AGENT'S NAME: THE CHASE MANHATTAN BANK
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
SUBSTITUTE PART 1-PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY Social Security
FORM W-9 SIGNING AND DATING BELOW. Number or
Employer
Identification
Number
................
---------------------------------------------------------------------------------------------------
Department of the Treasury PART 2-CERTIFICATION-UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
Internal Revenue Service (1) The number shown on this form is my correct Taxpayer Identification Number (or I am
waiting for a number to be issued to me) and
(2) I am not subject to backup withholding either because I have not been notified by
the Internal Revenue Service (the "IRS") that I am subject to backup withholding as
a result of a failure to report all interest or dividends, or the IRS has notified me
PAYER'S REQUEST FOR that I am no longer subject to backup withholding. CERTIFICATION INSTRUCTIONS-You must
TAXPAYER IDENTIFICATION cross out item (2) above if you have been notified by the IRS that you are currently
NUMBER ("TIN") subject to backup withholding because of underreporting interest or dividends on your
tax return. However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS that you are no longer subject
to backup withholding, do not cross out such item (2).
------------------
PART 3
SIGNATURE......................................... DATE..................... Awaiting TIN [ ]
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable payments made to me will be withheld, but that such amounts
will be refunded to me if I then provide a Taxpayer Identification Number within
60 days.
................................................ ..................., 1997
Signature Date
- --------------------------------------------------------------------------------
20
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
TO BE USED IN CONNECTION WITH
IMPERIAL CAPITAL TRUST I
OFFER TO EXCHANGE ITS
9.98% SERIES B CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
9.98% SERIES A CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
IMPERIAL CAPITAL TRUST I
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS
WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON ________, 1997 UNLESS THE OFFER IS EXTENDED.
As set forth in the Exchange Offer (as defined below), this Notice of
Guaranteed Delivery, or one substantially equivalent to this form, must be used
to accept the Exchange Offer if (i) certificates for the Trust's (as defined
below) 9.98% Series A Capital Securities (the "Old Capital Securities") are not
immediately available, (ii) the Old Capital Securities, the Letter of
Transmittal and all other required documents cannot be delivered to The Chase
Manhattan Bank (the "Exchange Agent") on or prior to the Expiration Date (as
defined in the Prospectus referred to below) or (iii) the procedures for
delivery by book-entry transfer cannot be completed on or prior to the
Expiration Date. This Notice of Guaranteed Delivery may be delivered by hand,
overnight courier or mail, or transmitted by facsimile transmission, to the
Exchange Agent on or prior to the Expiration Date. See "The Exchange Offer -
Procedures for Tendering Old Capital Securities" in the Prospectus.
<PAGE>
THE CHASE MANHATTAN BANK, EXCHANGE AGENT
BY MAIL, HAND OR OVERNIGHT DELIVERY:
The Chase Manhattan Bank
55 Water Street
Room 234, North Building
New York, New York 10041
Attn: Carlos Esteves
FACSIMILE TRANSMISSION
(FOR ELIGIBLE INSTITUTIONS ONLY):
(212) 638-7375
(212) 344-9367
CONFIRM BY TELEPHONE:
Carlos Esteves: (212) 638-0828
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF THIS INSTRUMENT VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
1
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Imperial Capital Trust I, a Delaware
statutory business trust (the "Trust"), upon the terms and subject to the
conditions set forth in the Prospectus dated , 1997 (as the same may be amended
or supplemented from time to time, the "Prospectus"), and the related Letter of
Transmittal (which together constitute the "Exchange Offer"), receipt of which
is hereby acknowledged, the aggregate liquidation amount of Old Capital
Securities set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer - Procedures for
Tendering Old Capital Securities."
Aggregate Liquidation Name of Registered Holder: ______________
Amount Tendered: __________________
Certificate Nos. Address: ________________________________
(if available): ___________________
_________________________________________
Area Code and Telephone Number: ___________________________
Signature: _______________________________________________________________
The undersigned understands that tenders of Old Capital Securities will
be accepted only in liquidation amounts of $100,000 and integral multiples of
$1,000 in excess thereof.
If Old Capital Securities will be tendered by book-entry transfer, provide the
following information:
DTC Account Number: ____________________________________________________________
Date: _______________ , 1997
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
2
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a financial institution (including most banks, savings
and loan associations and brokerage houses) that is a participant in the
Securities Transfer Agent Medallion Program, the New York Stock Exchange
Medallion Program or the Stock Exchange Medallion Program (an "Eligible
Institution"), hereby guarantees to deliver to the Exchange Agent, at its
address set forth above, either the Old Capital Securities tendered hereby in
proper form for transfer, or confirmation of the book-entry transfer of such Old
Capital Securities to the Exchange Agent's account at The Depository Trust
Company, pursuant to the procedures for book-entry transfer set forth in the
Prospectus, in either case together with one or more properly completed and duly
executed Letters of Transmittal (or facsimile thereof or Agent's Message in lieu
thereof) and any other required documents within three New York Stock Exchange
trading days after the date of execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letters of
Transmittal (or facsimile thereof or Agent's Message in lieu thereof) and the
Old Capital Securities tendered hereby (or a book-entry confirmation) to the
Exchange Agent within the time period set forth above and that failure to do so
could result in a financial loss to the undersigned.
Name of Firm: __________________________________________________________________
(Authorized Signature) _________________________________________________________
Title:
Address: _______________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number: ________________________________________________
Date: __________________________________________________________________________
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE
OF GUARANTEED DELIVERY. ACTUAL SURRENDER OF OLD
CAPITAL SECURITIES MUST BE MADE PURSUANT TO, AND BE
ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY
3
<PAGE>
EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED
DOCUMENTS.
4
NYFS04...:\31\53831\0003\1703\EXH5217K.42B
EXHIBIT 99.3
EXCHANGE AGENT AGREEMENT
_____________, 1997
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attn: Richard Lorenzen
Ladies and Gentlemen:
Imperial Capital Trust I, a Delaware statutory business trust
(the "Trust"), proposes to make an offer (the "Exchange Offer") to exchange up
to $75,000,000 aggregate liquidation amount of its 9.98% Series B Capital
Securities (liquidation amount $1,000 per Capital Security) (the "New Capital
Securities"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for a like liquidation amount of its outstanding
9.98% Series A Capital Securities (liquidation amount $1,000 per Capital
Security) (the "Old Capital Securities"), of which $75,000,000 aggregate
liquidation amount is outstanding. The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus, dated
____________, 1997 (the "Prospectus"), a copy of which is attached to this
Agreement as Attachment A, proposed to be distributed to all record holders of
the Old Capital Securities. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Prospectus.
The Trust hereby appoints The Chase Manhattan Bank to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Trust on
or about _____________, 1997. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Old Capital Securities to accept
the Exchange Offer, and contains certain instructions with respect to the
Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on __________, 1997 or on such later date or time to which the Trust or
Imperial Bancorp (the "Company") may extend the Exchange Offer (the "Expiration
Date"). Subject to the terms and conditions set forth in the Prospectus, the
Trust and the Company expressly reserve the right to extend the Exchange Offer
from time to time and may extend the Exchange Offer by giving oral (promptly
confirmed in writing) or written notice to you no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date.
1
<PAGE>
The Trust and the Company expressly reserve the right to amend
or terminate the Exchange Offer, and not to accept for exchange any Old Capital
Securities not theretofore accepted for exchange, upon the occurrence of any of
the conditions of the Exchange Offer specified in the Prospectus under the
caption "The Exchange Offer -- Conditions to the Exchange Offer." The Trust or
the Company will give oral (promptly confirmed in writing) or written notice of
any amendment, termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old
Capital Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days after the
date of the Prospectus or, if you already have established an account with the
Book-Entry Transfer Facility suitable for the Exchange Offer, you will identify
such preexisting account to be used in the Exchange Offer, and any financial
institution that is a participant in the Book-Entry Transfer Facility's systems
may make book-entry delivery of the Old Capital Securities by causing the
Book-Entry Transfer Facility to transfer such Old Capital Securities into your
account in accordance with the Book-Entry Transfer Facility's procedures for
such transfer.
3. You are to examine each of the Letters of Transmittal,
certificates for Old Capital Securities and confirmations of book-entry
transfers into your account at the Book-Entry Transfer Facility and any Agent's
Message or other documents delivered or mailed to you by or for holders of the
Old Capital Securities to ascertain whether: (i) the Letters of Transmittal and
any such other documents are duly executed and properly completed in accordance
with instructions set forth therein and (ii) the Old Capital Securities have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Old Capital Securities are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the Trust or the Chairman of the
Board, the Co-Chairman of the Board, the Chief Executive Officer, the Chief
Financial Officer or the Secretary of the Company (such approval, if given
orally, to be confirmed in writing) or any other party designated by the Trust
or such officer of the Company in writing, you are authorized to waive any
irregularities in connection with any tender of Old Capital Securities pursuant
to the Exchange Offer.
2
<PAGE>
5. Tenders of Old Capital Securities may be made only as set
forth in the section of the Prospectus captioned "The Exchange Offer --
Procedures for Tendering Old Capital Securities" or in the Letter of Transmittal
and Old Capital Securities shall be considered properly tendered to you only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Capital Securities which the Trust or any other party designated by the Trust in
writing shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Trust with respect to any Old Capital
Securities delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities
are registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as
indicated on the Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her authority to
act is submitted; and
(c) from persons other than the registered
holder of Old Capital Securities provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Capital Securities to the transfer agent for split-up and
return any untendered Old Capital Securities to the holder (or to such other
person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Trust will notify you (such notice if given orally, to be
promptly confirmed in writing) of the Company's and Trust's acceptance, promptly
after the Expiration Date, of all Old Capital Securities properly tendered and
you, on behalf of the Trust, will exchange such Old Capital Securities for New
Capital Securities and cause such Old Capital Securities to be canceled.
Delivery of New Capital Securities will be made on behalf of the Trust by you at
the rate of $1,000 liquidation amount of New Capital Securities for each $1,000
liquidation amount of the Old Capital Securities tendered promptly after notice
(such notice if given orally, to be promptly confirmed in writing) of acceptance
of said Old Capital Securities by the Trust; provided, however, that in all
cases, Old Capital Securities tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old Capital
Securities (or confirmation of book-entry transfer into your account at
3
<PAGE>
the Book-Entry Transfer Facility), a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature guarantees (or
in lieu thereof an Agent's Message) and any other required document. You shall
issue New Capital Securities only in denominations of $1,000 or any integral
multiple thereof, provided that no New Capital Securities will be issued except
in an aggregate amount of at least $100,000.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Old Capital Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date.
10. The Company and the Trust shall not be required to
exchange any Old Capital Securities tendered if any of the conditions set forth
in the Exchange Offer are not met. Notice of any decision by the Company and the
Trust not to exchange any Old Capital Securities tendered shall be given (such
notice, if given orally, shall be promptly confirmed in writing) by the Company
or the Trust to you.
11. If, pursuant to the Exchange Offer, the Company or the
Trust does not accept for exchange all or part of the Old Capital Securities
tendered because of an invalid tender, the occurrence of certain other events
set forth in the Prospectus under the caption "The Exchange Offer- Conditions to
the Exchange Offer" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Old Capital Securities (or effect the appropriate book-entry transfer
of the unaccepted Old Capital Securities), and return any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Old Capital Securities or
for unaccepted Old Capital Securities shall be forwarded by (a) first-class
mail, return receipt requested, under a blanket surety bond protecting you, the
Trust and the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no
representations and having no responsibilities as to the validity, sufficiency,
value or genuineness of Old Capital Securities, and will not be required to and
will make no representation as to the validity, value or genuineness of the
Exchange Offer; provided, however, that in no way will your general duty to act
in good faith be discharged by the foregoing;
4
<PAGE>
(b) shall not be obligated to take any legal
action hereunder which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company or the
Trust for any action taken or omitted by you, or any action suffered by you to
be taken or omitted, without negligence, misconduct or bad faith on your part,
by reason of or as a result of the administration of your duties hereunder in
accordance with the terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any written or oral
instructions delivered to you pursuant hereto, and may reasonably rely on and
shall be protected in acting in good faith in reliance upon any certificate,
instrument, opinion, notice, letter, facsimile or other document or security
delivered to you and easonably believed by you to be genuine and to have been
signed by the proper party or parties;
(d) may reasonably act upon any tender,
statement, request, comment, agreement or other instrument whatsoever not only
as to its due execution and validity and the effectiveness of its provisions,
but also as to the truth and accuracy of any information contained therein,
which you shall in good faith reasonably believe to be genuine or to have been
signed or represented by a proper person or persons;
(e) may rely on and shall be protected in acting
upon written or oral instructions from the Trust or any officer of the Company
with respect to the Exchange Offer;
(f) shall not advise any person tendering Old
Capital Securities pursuant to the Exchange Offer as to the wisdom of making
such tender or as to the market value or decline or appreciation in market value
of any Old Capital Securities; and
(g) may consult with your counsel with respect
to any questions relating to your duties and responsibilities and the written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by you hereunder in good
faith and in accordance with such written opinion of such counsel.
15. You shall take such action as may from time to time be
requested by the Company, the Trust or their counsel (and such other action as
you may reasonably deem appropriate) to furnish copies of the Prospectus, Letter
of Transmittal and the Notice of Guaranteed Delivery, or such other forms as may
be approved from time to time by the Company or the Trust, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company or the Trust will furnish you with copies of such documents
at your request. All other requests for information relating to the Exchange
Offer shall be directed to the Secretary of the Company at: 9920 South La
Cienega Boulevard, Inglewood, California 90301.
5
<PAGE>
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to the Trust, the Company and Weil,
Gotshal & Manges LLP, counsel for the Company and the Trust, and such other
person or persons as they may request, daily, and more frequently if reasonably
requested, up to and including the Expiration Date, as to the liquidation amount
of the Old Capital Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received and items
improperly received and items covered by Notices of Guaranteed Delivery. In
addition, you will also inform, and cooperate in making available to, the
Company and the Trust or any such other person or persons as the Company or the
Trust request from time to time prior to the Expiration Date of such other
information as they, or he reasonably requests. Such cooperation shall include,
without limitation, the granting by you to the Company, the Trust and such
person as the Company or the Trust may request of access to those persons on
your staff who are responsible for receiving tenders, in order to ensure that
immediately prior to the Expiration Date, the Company and the Trust shall have
received information in sufficient detail to enable them to decide whether to
extend the Exchange Offer. You shall prepare a list of persons who failed to
tender or whose tenders were accepted and the aggregate liquidation amount of
Old Capital Securities not tendered or Old Capital Securities not accepted and
deliver said list to the Company and the Trust at least seven days prior to the
Expiration Date. You shall also prepare a final list of all persons whose
tenders were accepted, the aggregate liquidation amount of Old Capital
Securities tendered and the aggregate liquidation amount of Old Capital
Securities accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt thereof and shall
be preserved by you for a period of time at least equal to the period of time
you preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. For services rendered as Exchange Agent hereunder you
shall be entitled to a fee of $5,000 and you shall be entitled to reimbursement
of your reasonable expenses (including reasonable fees and expenses of your
counsel, which fees are expected under normal circumstances to be not in excess
of $5,000) incurred in connection with the Exchange Offer. The obligations under
this Section 18 shall constitute joint and several obligations of the Trust and
the Company.
19. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal attached hereto and further acknowledge that you have
examined each of them to the extent necessary to perform your obligations
hereunder. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and indemnification of
you as Exchange Agent, which shall be controlled by this Agreement.
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20. The Company and the Trust jointly and severally agree to
indemnify and hold you harmless in your capacity as Exchange Agent hereunder
against any liability, cost or expense, including reasonable attorneys' fees,
arising out of or in connection with the acceptance or administration of your
duties hereunder, including, without limitation, in connection with any act,
omission, delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Capital Securities reasonably believed by you in good faith to
be authorized, and in delaying or refusing in good faith to accept any tenders
or effect any transfer of Old Capital Securities, provided, however, that the
Company and the Trust shall not be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of your
negligence, willful breach of this Agreement, willful misconduct or bad faith.
In no case shall the Company and the Trust be liable under this indemnity with
respect to any claim against you unless the Company and the Trust shall be
notified by you, by letter or by facsimile confirmed by letter, of the written
assertion of a claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or
commencement of action. The Company and the Trust shall be entitled to
participate at their own expense in the defense of any such claim or other
action, and, if the Company and the Trust so elect, the Company and the Trust
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company and the Trust shall assume the defense of any such suit,
the Company and the Trust shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Company and the
Trust shall retain counsel reasonably satisfactory to you to defend such suit.
You shall not compromise or settle any such action or claim without the consent
of the Company and the Trust.
21. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
22. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
23. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
24. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged. This Agreement may not be modified orally.
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25. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company or the Trust: With a copy to:
Imperial Bancorp Weil, Gotshal & Manges
9920 South La Cienega Boulevard 767 Fifth Avenue
Inglewood, California 90301 New York, New York 10153
Facsimile: (310) 417-5695 Facsimile: (212) 310-8007
Attention: Richard M. Baker Attention: Dennis J. Block
If to the Exchange Agent:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile: (212) 946-8158
Attention: Richard Lorenzen
26. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 18 and 20 shall survive the termination of this
Agreement. Except as provided in Section 17, upon any termination of this
Agreement, you shall promptly deliver to the Company any funds or property
(including, without limitation, Letters of Transmittal and any other documents
relating to the Exchange Offer) then held by you as Exchange Agent under this
Agreement.
27. This Agreement shall be binding and effective as of the
date hereof.
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Please acknowledge receipt of this Exchange Agent Agreement
and confirm the arrangements herein provided by signing and returning the
enclosed copy.
IMPERIAL BANCORP
By:
----------------------------
Robert M. Franko
Executive Vice President
IMPERIAL CAPITAL TRUST I
By:
----------------------------
Richard M. Baker
Administrative Trustee
Accepted as of the date
first above written:
THE CHASE MANHATTAN BANK
By:
-------------------------
Richard Lorenzen
Senior Trust Officer
NYFS04...:\31\53831\0003\1703\AGR5237U.39B
