PROSPECTUS Registration Statement Nos. 333-52359
333-52359-01
Filed pursuant to Rule 424(b)(1)
1,400,000 PREFERRED SECURITIES
FCNB CAPITAL TRUST
8.25% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED, AS DESCRIBED HEREIN, BY
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FCNB CORP
The 8.25% Cumulative Trust Preferred Securities (the "Preferred
Securities") offered hereby represent preferred undivided beneficial interests
in the assets of FCNB Capital Trust, a statutory business trust created under
the laws of the State of Delaware (the "Trust"). FCNB Corp, a Maryland
corporation ("the Company"), will own all the common securities (the "Common
Securities") of the Trust. The Common Securities and the Preferred Securities
(collectively, the "Trust Securities") represent undivided beneficial interests
in the assets of the Trust.
(continued on following page)
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Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market under the symbol "FCNBP".
SEE "RISK FACTORS," COMMENCING ON PAGE 11, FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
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THE SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS OR DEPOSIT ACCOUNTS,
ARE NOT OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF
THE COMPANY, ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENT AGENCY AND INVOLVE INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF
PRINCIPAL.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------
<TABLE>
<CAPTION>
======================================= ===================== ===================== =====================
PRICE TO UNDERWRITING PROCEEDS TO FCNB
PUBLIC COMMISSION(1) CAPITAL(2)
- --------------------------------------- --------------------- --------------------- ---------------------
<S> <C> <C> <C>
Per Preferred Security $25.00 (2) $25.00
- --------------------------------------- --------------------- --------------------- ---------------------
Total(3) $35,000,000 (2) $35,000,000
======================================= ===================== ===================== =====================
</TABLE>
(1) The Trust and the Company have each agreed to indemnify the Underwriters
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting."
(2) As the proceeds of the sale of the Preferred Securities will be invested in
the Subordinated Debentures, the Company has agreed to pay the Underwriters
$0.875 per Preferred Security, or $1,225,000 in the aggregate ($1,408,750
if the over-allotment option is exercised in full), as compensation for its
arranging the investment therein of such proceeds. See "Underwriting." The
Company has also agreed to pay the expenses of the offering estimated to be
$217,500.
(3) The Trust has granted the Underwriters an option exercisable within 30 days
from the date of this Prospectus to purchase up to 210,000 additional
Preferred Securities on the same terms and conditions set forth above to
cover over-allotments, if any. If all such additional Preferred Securities
are purchased, the Total Price to Public and Proceeds to FCNB Capital will
be $40,250,000. See "Underwriting."
The Preferred Securities are offered by the Underwriters subject to receipt
and acceptance by them, prior sale and the Underwriters' right to reject any
order in whole or in part and to withdraw, cancel or modify the offer without
notice. It is expected that delivery of the Preferred Securities will be made in
book-entry form through the book-entry facilities of the Depository Trust
Company on or about July 20, 1998, against payment therefor in immediately
available funds.
Sandler O'Neill Legg Mason Wood Walker Incorporated
& Partners, L.P.
The date of this Prospectus is July 15, 1998
<PAGE>
State Street Bank and Trust Company is the Property Trustee (as defined
herein) of the Trust. The Trust exists for the purpose of issuing the Preferred
Securities and investing the proceeds thereof in an equivalent amount of 8.25%
Subordinated Debentures (the "Subordinated Debentures") of the Company. The
Subordinated Debentures will mature on July 31, 2028 (the "Stated Maturity")
which date may be shortened to a date not earlier than July 31, 2003 if certain
conditions are met (including the Company having received prior approval of the
Board of Governors of the Federal Reserve System ("Federal Reserve") to do so if
then required under applicable capital guidelines or policies of the Federal
Reserve). The Preferred Securities will have a preference under certain
circumstances with respect to cash distributions and amounts payable on
liquidation, redemption or otherwise over the Common Securities. See
"Description of the Preferred Securities--Subordination of Common Securities."
Holders of Preferred Securities are entitled to receive preferential
cumulative cash distributions, at the annual rate of 8.25% of the liquidation
amount of $25 per Preferred Security (the "Liquidation Amount"), accruing from
July 20, 1998, the date of original issuance, and payable quarterly in arrears
on the last day of January, April, July and October of each year, commencing
October 31, 1998 (the "Distributions"). The Company has the right, so long as no
Debenture Event of Default (as defined herein) has occurred and is continuing,
to defer payment of interest on the Subordinated Debentures at any time or from
time to time for a period not to exceed 20 consecutive quarters with respect to
each deferral period (each, an "Extension Period"); provided that no Extension
Period may extend beyond the Stated Maturity of the Subordinated Debentures.
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 interest payments on the Subordinated
Debentures are so deferred, Distributions on the Preferred 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 its capital stock or debt securities that rank pari passu with or
junior to the Subordinated Debentures.
DURING AN EXTENSION PERIOD, INTEREST ON THE SUBORDINATED DEBENTURES WILL
CONTINUE TO ACCRUE (AND THE AMOUNT OF DISTRIBUTIONS TO WHICH HOLDERS OF THE
PREFERRED SECURITIES ARE ENTITLED WILL ACCUMULATE) AT THE RATE OF 8.25% PER
ANNUM, COMPOUNDED QUARTERLY, AND HOLDERS OF THE PREFERRED SECURITIES WILL BE
REQUIRED TO INCLUDE INTEREST INCOME IN THEIR GROSS INCOME FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES IN ADVANCE OF RECEIPT OF THE CASH DISTRIBUTIONS WITH
RESPECT TO SUCH DEFERRED INTEREST PAYMENTS. FOLLOWING THE DEFERRAL OF THE
PAYMENT OF INTEREST ON THE SUBORDINATED DEBENTURES, A HOLDER OF PREFERRED
SECURITIES THAT DISPOSES OF ITS PREFERRED SECURITIES BETWEEN RECORD DATES FOR
PAYMENTS OF DISTRIBUTIONS (AND CONSEQUENTLY DOES NOT RECEIVE A DISTRIBUTION FROM
THE TRUST FOR THE PERIOD OF INTEREST DEFERRAL PRIOR TO SUCH DISPOSITION) WILL
NEVERTHELESS BE REQUIRED TO INCLUDE ACCRUED BUT UNPAID INTEREST ON THE
SUBORDINATED DEBENTURES THROUGH THE DATE OF DISPOSITION IN INCOME AS ORDINARY
INCOME AND TO ADD SUCH AMOUNT TO ITS ADJUSTED TAX BASIS IN ITS PRO RATA SHARE OF
THE UNDERLYING SUBORDINATED DEBENTURES DEEMED DISPOSED OF. See "Description of
the Subordinated Debentures--Option to Extend Interest Payment Period," "Certain
Federal Income Tax Consequences--Potential Extension of Interest Payment Period
and Original Issue Discount" and "--Disposition of Preferred Securities."
The Company and the Trust believe that, taken together, the obligations of
the Company under the Guarantee, the Trust Agreement, the Subordinated
Debentures, the Indenture and the Expense Agreement (each as defined herein)
provide, in the aggregate, a full, irrevocable and unconditional guarantee, on a
subordinated basis, of all of the obligations of the Trust under the Preferred
Securities. See "Relationship Among the Preferred Securities, the Subordinated
Debentures and the Guarantee--Full and Unconditional Guarantee." Under the
Guarantee, the Company guarantees, on a subordinated basis, the payment of
Distributions and payments on liquidation or redemption of the Preferred
Securities, but only to the extent of funds held by the Trust, as described
herein. See "Description of the Guarantee--General." If the Company does not
make interest payments on the Subordinated Debentures held by the Trust, the
Trust will have insufficient funds to pay Distributions on the Preferred
Securities. The Guarantee does not cover payments of Distributions when the
Trust does not have sufficient funds to pay such Distributions. In such event, a
holder of Preferred Securities may institute a legal proceeding directly against
the Company pursuant to the terms of the Indenture to enforce payments of
amounts equal to such Distributions to such holder. See "Description of the
Subordinated Debentures--Enforcement of Certain
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<PAGE>
Rights by Holders of the Preferred Securities." The obligations of the Company
under the Guarantee and the Preferred Securities are subordinate and junior in
right of payment to all Senior Debt, Subordinated Debt and Additional Senior
Obligations (each as defined herein) of the Company. The Subordinated Debentures
are unsecured obligations of the Company and are subordinated to all Senior
Debt, Subordinated Debt and Additional Senior Obligations of the Company.
The Preferred Securities are subject to mandatory redemption, in whole or
in part, upon repayment of the Subordinated Debentures at maturity or their
earlier redemption. Subject to Federal Reserve approval, if then required under
applicable capital guidelines or policies of the Federal Reserve, the
Subordinated Debentures are redeemable prior to the Stated Maturity at the
option of the Company: (i) on or after July 31, 2003, in whole at any time, or
in part from time to time; or (ii) at any time, in whole (but not in part),
within 90 days following the occurrence of a Tax Event, a Capital Treatment
Event or an Investment Company Event (each as defined herein). In each case the
redemption price will be equal to the accrued and unpaid interest through the
date fixed for redemption on the Subordinated Debentures to be redeemed, plus
100% of the principal amount thereof. See "Description of the Preferred
Securities--Redemption or Exchange."
The Company has the right at any time to dissolve, wind-up or terminate the
Trust, subject to the Company having received prior approval of the Federal
Reserve to do so, if then required under applicable capital guidelines or
policies of the Federal Reserve. In the event of the voluntary or involuntary
dissolution, winding up or termination of the Trust, after satisfaction of
liabilities to creditors of the Trust as required by applicable law, the holders
of Preferred Securities will be entitled to receive a Liquidation Amount of $25
per Preferred Security, plus accumulated and unpaid Distributions thereon to the
date of payment, which may be in the form of a Subordinated Debenture having an
aggregate principal amount equal to the Liquidation Amount of such Preferred
Securities (and carrying with it accumulated interest in an amount equal to the
accumulated and unpaid Distributions then due on such Preferred Securities),
subject to certain exceptions. See "Description of the Preferred
Securities--Redemption or Exchange" and "--Liquidation Distribution Upon
Termination."
The Preferred Securities will be represented by global certificates
registered in the name of the Depository Trust Company ("DTC") or its nominee.
Beneficial interests in the Preferred Securities will be shown on, and transfers
thereof will only be effected through, records maintained by participants in DTC
("Participants"). Except as described herein, Preferred Securities in
certificated form will not be issued in exchange for the global certificates.
See "Description of the Preferred Securities--Book-Entry Securities; Delivery
and Form" and "Book-Entry Issuance."
----------
The Company will provide to holders of the Preferred Securities quarterly
reports containing unaudited financial statements, to the extent and in the form
provided to holders of the Company's common stock, and annual reports containing
financial statements audited by the Company's independent auditors. In addition,
the Company will furnish annual reports on Form 10-K and quarterly reports on
Form 10-Q free of charge to holders of Preferred Securities who so request in
writing addressed to the Secretary of the Company.
----------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE PREFERRED
SECURITIES OFFERED HEREBY, INCLUDING OVER-ALLOTTING THE PREFERRED SECURITIES AND
BIDDING OR PURCHASING SUCH PREFERRED SECURITIES AT A LEVEL ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE
ACTIVITIES, SEE "UNDERWRITING." SUCH STABILIZING TRANSACTIONS, IF COMMENCED, MAY
BE DISCONTINUED AT ANY TIME.
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<PAGE>
FCNB CORP LOGO
Parent Company of
FCNB Bank logo
Map of market area
-4-
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere (or incorporated by reference) in this
Prospectus. Unless otherwise indicated, the information in this Prospectus
assumes that the Underwriters' over-allotment option will not be exercised.
Prospective investors should carefully consider the information set forth under
the heading "Risk Factors."
FCNB CORP
The Company was organized in 1986 to serve as the holding company for FCNB
Bank (the "Bank"), its principal operating subsidiary. The Bank, which was
originally chartered in 1818, was converted from a national bank charter to a
Maryland commercial bank in 1993, and is engaged in a general commercial and
consumer banking business, serving individuals and businesses in Frederick, Anne
Arundel, Carroll, Howard, Montgomery and Prince George's counties in Maryland.
The Bank is the sixth largest commercial banking institution headquartered in
Maryland. At March 31, 1998, the Company had assets of approximately $926.9
million, total deposits of approximately $633.0 million, and total shareholders'
equity of approximately $79.6 million. The principal executive office of the
Company is located at 7200 FCNB Court, Frederick, Maryland 21703, and its
telephone number is (301) 662-2191.
Over the past five years, the Company has achieved significant growth in
assets. From 1993 to 1997, the Company's assets grew at an 11.1% compound annual
growth rate, and increased by $8.8 million, or 0.96% in the first three months
of 1998. The Company has achieved its growth both internally and through
acquisition. In addition to a recently completed branch purchase transaction,
the Company has completed three whole bank acquisitions since 1995, consummating
the acquisition of Elkridge Bank (March 1995), Laurel Federal Savings Bank
(January 1996) and Odenton Federal Savings and Loan Association (April 1996), as
well as a number of smaller branch transactions. The Company has also had a
history of earnings growth. Net income (before extraordinary charges and merger
related expenses) grew at a compound annual growth rate of 7.2% from 1993 to
1997. For the five year period from 1993 to 1997, the Company's average annual
return on average assets (before merger-related expenses) was 1.15%. The
annualized return on average equity and the annualized return on average assets
for the three months ended March 31, 1998 were 12.11% and 1.04%, respectively.
The Company routinely explores opportunities for additional growth and
expansion of its core banking business and related activities, including the
acquisition of companies engaged in banking or other related activities, and
internally generated growth. There can be no assurance, however, that the
Company will be able to grow, or if it does, that any such growth or expansion
will result in an increase in the Company's earnings, dividends, book value or
market value of its securities.
RECENT DEVELOPMENTS
On June 23, 1998, the Company entered into an Agreement and Plan of
Reorganization and Merger pursuant to which it will acquire Capital Bank,
National Association ("Capital"), through the merger of Capital with and into
the Bank. Capital, the main office of which is in Rockville, Maryland, has three
branches, two located in the District of Columbia and one in Tysons Corner,
Virginia. FCNB anticipates that it will issue approximately 1,300,000 shares of
common stock in connection with the transaction, subject to adjustment, for an
aggregate deal value of approximately $42.0 million. At March 31, 1998, Capital
had total assets of approximately $156.4 million, deposits of $128.0 million,
and total shareholders' equity of $11.14 million. For the three months ended
March 31, 1998 and the year ended December 31, 1997, Capital had net income of
$386,000 and $1.2 million, respectively. It is anticipated that the merger will
be accounted for as a pooling of interests. The Company anticipates that it will
incur one-time pretax charges of approximately $1.75 million upon consummation
of the merger. The consummation of the merger remains subject to regulatory and
shareholder approvals, and the satisfaction of a number of other conditions.
FCNB currently anticipates that the merger will be consummated in the fourth
quarter of 1998.
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<PAGE>
On June 26, 1998, the Bank consummated a transaction pursuant to which it
assumed the deposit liabilities, and purchased certain assets, relating to four
branches of First Virginia Bank-Maryland located in Montgomery County, Maryland,
and three branches of its sister bank, Farmer's Bank of Maryland, located in
Baltimore County, Maryland. The seven branches held approximately $48.0 million
in deposits at December 31, 1997. The purchase and assumption transaction brings
the total number of branches operated by the Company to 28, its total deposits
to approximately $681.0 million and its total assets to approximately $974.9
million.
FCNB CAPITAL TRUST
The Trust is a statutory business trust formed under Delaware law pursuant
to: (i) the Trust Agreement among the Company, as depositor, Wilmington Trust
Company, as Delaware trustee, and the three individual Administrative Trustees
named therein, and (ii) the filing of a certificate of trust with the Delaware
Secretary of State on May 7, 1998. The Trust Agreement will be amended and
restated in its entirety (as so amended, the "Trust Agreement"). All of the
Common Securities of the Trust will be owned by the Company. The Trust's
business and affairs will be conducted by the Delaware Trustee, the
Administrative Trustees, each of whom is an officer, employee or otherwise
affiliated with the Company, and following amendment and restatement of the
Trust Agreement, State Street Bank and Trust Company, as Property Trustee. The
Trust exists for the exclusive purposes of: (i) issuing the Trust Securities
representing undivided beneficial interests in the assets of the Trust; (ii)
investing the gross proceeds of the Trust Securities in the Subordinated
Debentures issued by the Company; and (iii) engaging in only those other
activities necessary, advisable, or incidental thereto. The Subordinated
Debentures and payments thereunder will be the only assets of the Trust and
payments under the Subordinated Debentures will be the only revenue of the
Trust. The principal executive office of the Trust is located at 7200 FCNB
Court, Frederick, Maryland 21703, and its telephone number is (301) 662-2191.
THE OFFERING
Securities Offered.............. 1,400,000 Preferred Securities having a
Liquidation Amount of $25 per Preferred
Security. The Preferred Securities represent
preferred undivided beneficial interests in
the assets of the Trust, which will consist
solely of the Subordinated Debentures and
payments thereunder. The Trust has granted
the Underwriters an option, exercisable
within 30 days after the date of this
Prospectus, to purchase up to an additional
210,000 Preferred Securities at the initial
offering price, solely to cover
over-allotments, if any.
Distributions................... The Distributions payable on each Preferred
Security will be fixed at a rate per annum of
8.25% of the Liquidation Amount, will be
cumulative, will accrue from July 20, 1998,
the date of original issuance of the
Preferred Securities, and will be payable
quarterly in arrears, on January 31, April
30, July 31 and October 31 of each year,
commencing October 31, 1998. See "Description
of the Preferred Securities -- Distributions
-- Payment of Distributions."
Extension Periods............... The Company has the right, at any time, so
long as no Debenture Event of Default has
occurred and is continuing, to defer payments
of interest on the Subordinated Debentures
for a period not exceeding 20 consecutive
quarters; provided that no Extension Period
may extend beyond the Stated Maturity of the
Subordinated Debentures. If interest payments
on the Subordinated Debentures are so
deferred, quarterly Distributions on the
Preferred Securities will be deferred (though
such Distributions would continue to accrue
with interest thereon compounded quarterly,
since
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<PAGE>
interest will continue to accrue and compound
on the Subordinated Debentures) during any
such Extension Period. During an Extension
Period, the Company will be prohibited,
subject to certain exceptions described
herein, from declaring or paying any cash
distributions with respect to its capital
stock or debt securities that rank pari passu
with or junior to the Subordinated
Debentures. Upon the termination of any
Extension Period and the payment of all
amounts then due, the Company may commence a
new Extension Period, subject to the
foregoing requirements. See "Description of
the Preferred Securities -- Distributions --
Extension Period" and "Description of the
Subordinated Debentures -- Option to Extend
Interest Payment Period."
Should an Extension Period occur, holders of
Preferred Securities will be required to
include deferred interest income in their
gross income for United States federal income
tax purposes in advance of receipt of the
cash distributions with respect to such
deferred interest payments. The Company has
no current intention of exercising its right
to defer payments of interest on the
Subordinated Debentures by extending the
interest payment period. See "Certain Federal
Income Tax Consequences--Potential Extension
of Interest Payment Period and Original Issue
Discount."
Redemption...................... The Preferred Securities are subject to
mandatory redemption, in whole or in part,
upon repayment of the Subordinated Debentures
at maturity or their earlier redemption.
Subject to Federal Reserve approval, if then
required under applicable capital guidelines
or policies of the Federal Reserve, the
Subordinated Debentures are redeemable prior
to maturity at the option of the Company: (i)
on or after July 31, 2003, in whole at any
time or in part from time to time; or (ii) at
any time, in whole (but not in part), within
90 days following the occurrence of a Tax
Event, a Capital Treatment Event or an
Investment Company Event, in each case at the
redemption price equal to 100% of the
principal amount of the Subordinated
Debenture, together with any accrued but
unpaid interest to the date fixed for
redemption. See "Description of the
Subordinated Debentures--Redemption or
Exchange."
Distribution of Subordinated
Debentures.................... The Company has the right at any time to
terminate the Preferred Securities and cause
the Subordinated Debentures to be distributed
to holders of Preferred Securities in
liquidation of the Trust, subject to the
Company having received prior approval of the
Federal Reserve to do so, if then required
under applicable capital guidelines or
policies of the Federal Reserve. See
"Description of the Preferred Securities --
Redemption or Exchange" and "Description of
the Preferred Securities -- Liquidation
Distribution Upon Termination."
Guarantee....................... The Company has guaranteed the payment of
Distributions and payments on liquidation or
redemption of the Preferred Securities, but
only to the extent of funds held by the
Trust, as described herein. The Company and
the Trust believe that, taken together, the
obligations of the Company under the
Guarantee, the Trust Agreement, the
Subordinated Debentures,
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<PAGE>
the Indenture and the Expense Agreement
provide, in the aggregate, a full,
irrevocable and unconditional guarantee, on a
subordinated basis, of all of the obligations
of the Trust under the Preferred Securities.
The obligations of the Company under the
Guarantee and the Preferred Securities are
subordinate and junior in right of payment to
all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company.
If the Company does not make principal or
interest payments on the Subordinated
Debentures, the Trust will not have
sufficient funds to make Distributions on the
Preferred Securities; in which event, the
Guarantee will not apply to such
Distributions until the Trust has sufficient
funds available therefor. See "Description of
the Guarantee."
Voting Rights................... The holders of the Preferred Securities will
have no voting rights, except in limited
circumstances. See "Description of the
Preferred Securities -- Voting Rights;
Amendment of Trust Agreement."
Use of Proceeds................. The proceeds from the sale of the Preferred
Securities will be used by the Trust to
purchase Subordinated Debentures from the
Company. The net proceeds to the Company from
the sale of the Subordinated Debentures will
be used for general corporate purposes,
including use in the Bank's lending and
investment activities, and to enable the
Company to pursue opportunities for future
growth through possible acquisitions. See
"Use of Proceeds."
Nasdaq National Market Symbol... Application has been made to have the
Preferred Securities approved for quotation
on The Nasdaq Stock Market's National Market
under the symbol "FCNBP".
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<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data for the five years ended
December 31, 1997 are derived from the audited consolidated financial statements
of the Company. The data for the three month periods ended March 31, 1997 and
1998 have been derived from unaudited interim financial statements and include,
in the opinion of management, all adjustments (consisting of only normal
recurring adjustments) necessary to present fairly the data for such period. The
results of operations for the three month period ended March 31, 1998 are not
necessarily indicative of results which may be expected for any other interim
period or for the full year. The summary consolidated financial data set forth
below does not purport to be complete and should be read in conjunction with,
and is qualified in its entirety by, the more detailed information contained in
the consolidated financial statements of the Company and related notes, and the
discussion under "Management's Discussion and Analysis of Financial Condition
and Results of Operations," included in the Company's Annual Report to
Shareholders for the year ended December 31, 1997 and Quarterly Report on Form
10-Q for the three months ended March 31, 1998.
<PAGE>
<TABLE>
<CAPTION>
At or for the three
months ended March
31, At or for the years ended December 31,
----------------------- ----------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
(dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATING RESULTS:
Total interest income $ 16,804 $ 14,734 $ 63,191 $ 54,653 $ 51,126 $ 43,892 $ 41,691
Total interest expense(1) 8,596 6,956 31,012 25,014 22,759 17,010 16,054
----------------------- ----------------------------------------------------------
Net interest income 8,208 7,778 32,179 29,639 28,367 26,882 25,637
Provision for credit losses 100 231 1,329 318 710 525 765
----------------------- ----------------------------------------------------------
Net interest income after
provision for credit losses 8,108 7,547 30,850 29,321 27,657 26,357 24,872
Net securities gains (losses) 152 87 580 193 123 375 (1,183)
Noninterest income (excluding net
securities gains (losses)) 1,632 1,206 5,540 4,068 3,795 2,503 4,497
Noninterest expenses 6,452 6,218 23,949 24,470 20,689 19,191 18,013
----------------------- ----------------------------------------------------------
Income before provision for 3,440 2,622 13,021 9,112 10,886 10,044 10,173
income taxes
Provision for income taxes 1,086 772 4,218 3,245 3,888 3,272 3,301
----------------------- ----------------------------------------------------------
Net income $ 2,354 $ 1,850 $ 8,803 $ 5,867 $ 6,998 $ 6,772 $ 6,872
Other comprehensive income 737 (1,068) 2,912 (26) 2,680 (3,285) 1,135
(loss)(2)
----------------------- ----------------------------------------------------------
Comprehensive income(2) $ 3,091 $ 782 $11,715 $ 5,841 $ 9,678 $ 3,487 $ 8,007
======================= ==========================================================
Net income before merger-related
expenses $ 2,354 $ 2,065 $ 9,088 $ 7,778 $ 7,301 $ 6,999 $ 6,872
======================= ==========================================================
PER SHARE DATA:
Basic and diluted earnings $ 0.40 $ 0.31 $ 1.49 $ 0.99 $ 1.19 $ 1.15 $ 1.17
Basic and diluted earnings before 0.40 0.35 1.54 1.31 1.24 1.19 1.17
merger-related expenses
Cash dividends declared 0.17 0.14 0.57 0.49 0.50 0.44 0.35
Book value at period-end 13.46 11.70 13.11 11.71 11.36 10.18 9.96
Shares outstanding at period-end 5,915,442 5,894,416 5,912,284 5,901,016 5,828,197 5,796,869 5,789,812
BALANCE SHEET DATA (AT
PERIOD-END):
Total loans, net of unearned
income $573,492 $513,140 $574,105 $497,995 $439,794 $390,177 $336,916
Total assets 926,898 807,332 918,084 779,169 660,984 627,050 603,497
Total deposits 632,971 595,899 616,512 587,074 529,988 505,202 485,543
Federal funds purchased and
securities sold under agreements
to repurchase 34,449 46,414 65,163 40,739 21,043 25,103 32,304
Other short-term borrowings 173,137 89,213 152,138 76,516 32,426 26,089 13,776
Long-term debt -- -- -- -- 5,680 7,000 10,106
Total shareholders' equity 79,647 68,959 77,518 69,110 66,219 59,037 57,689
PERFORMANCE RATIOS:
Return on average total assets 1.04 % 0.94 % 1.07 % 0.84 % 1.09 % 1.14 % 1.23 %
Return on average total assets
before 1.04 1.05 1.09 1.11 1.14 1.17 1.23
merger-related expenses
Return on average shareholders'
equity 12.11 10.72 12.25 8.92 11.21 11.79 12.73
Return on average shareholder's equity
before merger-related expenses 12.11 11.96 12.65 11.82 11.70 12.18 12.73
Net interest margin 4.00 4.32 4.24 4.52 4.78 4.96 5.08
Cash dividends declared to net 42.69 43.51 38.77 49.86 41.61 36.62 30.32
income
</TABLE>
-9-
<PAGE>
<TABLE>
<CAPTION>
At or for the three
months ended March
31, At or for the years ended December 31,
----------------------- ----------------------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
(dollars in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
ASSET QUALITY RATIOS:
Nonperforming assets to total
loans (net of unearned income)
and foreclosed properties at
period-end(3) 1.39 % 1.79 % 1.40 % 2.05 % 1.11 % 1.48 % 1.78 %
Nonperforming assets to total
assets at period-end(3) 0.86 1.14 0.88 1.32 0.74 0.93 1.00
Allowance for credit losses to
nonperforming loans at period-end 99.53 93.76 123.68 71.53 197.51 130.38 125.16
Net charge-offs (recoveries) to
average total loans 0.02 (0.03) 0.14 0.19 0.04 0.01 0.07
CAPITAL RATIOS:
Total capital to risk-weighted
assets 11.95 % 12.81 % 11.92 % 13.57 % 14.12 % 13.67 % 14.87 %
Tier 1 capital to risk-weighted
assets 11.08 11.82 11.03 12.58 12.97 12.64 13.77
Leverage ratio 8.03 8.46 8.10 8.74 8.91 8.40 8.25
</TABLE>
- ----------
(1) Net of $108,000 and $300,000 of capitalized construction period interest in
1996 and 1995, respectively.
(2) Statement of Financial Accounting Standards No. 130 requires that
comprehensive income be reported in financial statements for periods
beginning after December 15, 1997. Reclassification of prior period
statements is required for comparative purposes.
(3) Nonperforming assets consist of nonaccrual loans, loans contractually past
due 90 days or more, loans with restructured terms and foreclosed
properties.
RATIO OF EARNINGS TO FIXED CHARGES(1)
<TABLE>
<CAPTION>
Three Months
Ended March 31, Years Ended December 31,
----------------- ------------------------------------------
1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Including interest on deposits 1.40x 1.38x 1.42x 1.36x 1.46x 1.59x 1.63x
Excluding interest on deposits 4.23 5.67 4.96 7.46 9.10 11.35 14.78
</TABLE>
- ----------
(1) Fixed charges means interest, whether expensed or capitalized. Earnings is
defined as pretax income with fixed charges added back, but excluding any
amount of interest capitalized during the period.
-10-
<PAGE>
RISK FACTORS
Prospective investors should carefully consider, together with the other
information contained and incorporated by reference in this Prospectus, the
following risk factors in evaluating the Company and its business and the Trust
and the Preferred Securities before purchasing the Preferred Securities offered
hereby. Prospective investors should note, in particular, that this Prospectus
contains forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the "Securities Act"), and Section 21E of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including
statements of goals, intentions, and expectations, regarding or based upon
general economic conditions, interest rates, developments in national and local
markets, and other matters, and which, by their nature, are subject to
significant uncertainties. Because of these uncertainties and the assumptions on
which statements in this Prospectus are based, actual future results may differ
materially from those contemplated by such statements. The considerations listed
below represent certain important factors the Company believes could cause such
results to differ. These considerations are not intended to represent a complete
list of the general or specific risks that may affect the Company and the Trust.
It should be recognized that other risks may be significant, presently or in the
future, and the risks set forth below may affect the Company and the Trust to a
greater, or lesser, extent than indicated.
SUBORDINATION OF THE GUARANTEE AND THE SUBORDINATED DEBENTURES
The obligations of the Company under the Guarantee issued for the benefit
of the holders of Preferred Securities and under the Subordinated Debentures are
unsecured and rank subordinate and junior in right of payment to all Senior
Debt, Subordinated Debt and Additional Senior Obligations of the Company,
whether now existing or hereafter incurred. At July 15, 1998, the Company had no
outstanding Senior Debt, Subordinated Debt or Additional Senior Obligations.
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of the Bank upon the Bank's
liquidation or reorganization or otherwise (and thus the ability of holders of
the Preferred Securities to benefit indirectly from such distribution) is
subject to the prior claims of creditors of the Bank, except to the extent that
the Company may itself be recognized as a creditor of the Bank. The Subordinated
Debentures, therefore, will be effectively subordinated to all existing and
future liabilities of the Bank and holders of Subordinated Debentures and
Preferred Securities should look only to the assets of the Company for payments
on the Subordinated Debentures. Neither the Indenture, the Guarantee nor the
Trust Agreement places any limitation on the amount of secured or unsecured
debt, including Senior Debt, Subordinated Debt and Additional Senior
Obligations, that may be incurred by the Company. See "Description of the
Guarantee--Status of the Guarantee" and "Description of the Subordinated
Debentures--Subordination."
The ability of the Trust to pay amounts due on the Preferred Securities is
solely dependent upon the Company making payments on the Subordinated Debentures
as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
The Company has the right under the Indenture, so long as no Debenture
Event of Default has occurred and is continuing, to defer the payment of
interest on the Subordinated Debentures, at any time or from time to time, for a
period not exceeding 20 consecutive quarters with respect to each Extension
Period; provided that no Extension Period may extend beyond the Stated Maturity
of the Subordinated Debentures. As a consequence of any such deferral, quarterly
Distributions on the Preferred Securities by the Trust will be deferred (and the
amount of Distributions to which holders of the Preferred Securities are
entitled will accumulate additional Distributions thereon at the rate of 8.25%
per annum, compounded quarterly from the relevant payment date for such
Distributions) during any such Extension Period. During any such Extension
Period, the Company may not, subject to limited exceptions: (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; (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior in interest to the Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Company of
-11-
<PAGE>
the debt securities of any subsidiary of the Company if such guarantee ranks
pari passu with or junior in interest to the Subordinated Debentures (other than
payments under the Guarantee); or (iii) redeem, purchase or acquire less than
all of the Subordinated Debentures or any of the Preferred Securities. Prior to
the termination of any such Extension Period, the Company may further defer the
payment of interest; provided that no Extension Period may exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Subordinated Debentures.
Upon the termination of any Extension Period and the payment of all interest
then accrued and unpaid (together with interest thereon at the annual rate of
8.25% compounded quarterly, to the extent permitted by applicable law), the
Company may elect to begin a new Extension Period, subject to the above
requirements. Subject to the foregoing, there is no limitation on the number of
times that the Company may elect to begin an Extension Period. See "Description
of the Preferred Securities--Distributions--Extension Period" and "Description
of the Subordinated Debentures--Option to Extend Interest Payment Period."
Should an Extension Period occur, each holder of Preferred Securities will
be required to accrue and recognize income (in the form of original issue
discount ("OID")) in respect of its pro rata share of the interest accruing on
the Subordinated Debentures held by the Trust for United States federal income
tax purposes. Under such circumstances, a holder of Preferred Securities would
be required to include such income in gross income for United States federal
income tax purposes in advance of the receipt of cash, and will not receive the
cash related to such income from the Trust if the holder disposes of the
Preferred Securities prior to the record date for the payment of the related
Distributions. See "Certain Federal Income Tax Consequences--Potential Extension
of Interest Payment Period and Original Issue Discount."
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures, and believes the likelihood of its exercising such
right to be remote. Should the Company elect, however, to exercise such right in
the future, the market price of the Preferred Securities is likely to be
adversely affected. A holder that disposes of its Preferred Securities during an
Extension Period, therefore, might not receive the same return on its investment
as a holder that continues to hold its Preferred Securities. As a result of the
existence of the Company's right to defer interest payments, the market price of
the Preferred Securities may be more volatile than the market prices of other
securities on which original issue discount accrues that are not subject to such
optional deferrals.
REDEMPTION UPON TAX EVENT, CAPITAL TREATMENT EVENT OR INVESTMENT COMPANY EVENT
The Company has the right to redeem the Subordinated Debentures in whole
(but not in part) within 90 days following the occurrence of a Tax Event, a
Capital Treatment Event or Investment Company Event (whether occurring before or
after July 31, 2003), and, therefore, cause a mandatory redemption of the
Preferred Securities. The exercise of such right is subject to the Company
having received prior approval of the Federal Reserve to do so, if then required
under applicable capital guidelines or policies of the Federal Reserve.
"Tax Event" means the receipt by the Trust of an opinion of 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 of the United
States or any political subdivision or taxing authority thereof or therein (or
any regulations thereunder), 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 date of issuance of the Preferred
Securities under the Trust Agreement, 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 Subordinated Debentures; (ii) interest payable by the Company on
the Subordinated Debentures is not, or, within 90 days 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 within 90 days of the date of the
opinion will be, subject to more than a de minimis amount of other taxes, duties
or other governmental charges. The Company must request and receive an opinion
with regard to such matters within a reasonable period of time after it becomes
aware of the possible occurrence of any of the events described in clauses (i)
through (iii)
-12-
<PAGE>
above. See "Risk Factors--Proposed Tax Legislation" for a discussion of certain
legislative proposals that, if adopted, could give rise to a Tax Event, which
may permit the Company to cause a redemption of the Preferred Securities prior
to July 31, 2003.
Prospective investors should be aware that Enron Corporation has filed a
petition with the United States Tax Court challenging the proposed disallowance
by the Internal Revenue Service of the deduction of interest expense on
securities issued by Enron Corporation in 1993 and 1994 that are similar to,
although different in a number of respects from, the Subordinated Debentures. It
is possible that a decision in that case could form the basis of a Tax Event,
thereby permitting the Company to exchange the Preferred Securities for the
Subordinated Debentures, or to redeem all of the Trust Securities. Additionally,
in 1996 and 1997, certain legislative proposals were made which if enacted,
would have adversely affected the ability of the Company to deduct interest paid
on the Subordinated Debentures. While these proposals were not enacted, there
can be no assurance that legislation enacted, or other developments, after the
date hereof will not adversely affect the ability of the Company to deduct
interest paid on the Subordinated Debentures. See "Risk Factors--Proposed Tax
Legislation."
"Capital Treatment Event" means the receipt by the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to or any change (including any announced prospective change) in the
laws of the United States or any political subdivision thereof or therein (or
any regulations thereunder), 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 proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk of impairment of the Company's ability to treat the aggregate
Liquidation Amount of the Preferred Securities (or any substantial portion
thereof) as "Tier 1 Capital" (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then applicable to
the Company, provided, however, that the inability of the Company to treat all
or any portion of the Liquidation Amount of the Preferred Securities as Tier 1
Capital shall not constitute the basis of a Capital Treatment Event if such
inability results from the Company having cumulative preferred capital in excess
of the amount which may qualify for treatment as Tier 1 Capital under applicable
capital adequacy guidelines of the Federal Reserve.
"Investment Company Event" means the receipt by the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which change
becomes effective on or after the date of original issuance of the Preferred
Securities.
SHORTENING OF STATED MATURITY OF SUBORDINATED DEBENTURES
The Company has the right, at any time, to shorten the maturity of the
Subordinated Debentures to a date not earlier than July 31, 2003. The exercise
of such right is 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. See "Description of the Subordinated
Debentures--General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Preferred Securities, to the
extent not paid by the Trust: (i) any accrued and unpaid Distributions required
to be paid on the Preferred Securities, to the extent that the Trust has funds
available therefor at such time; (ii) the Redemption Price (as defined herein)
with respect to any Preferred Securities called for redemption, to the extent
that the Trust has funds available therefor at such time; and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of the Trust
(other than in connection with the distribution of Subordinated Debentures to
the holders of Preferred Securities or a redemption of all of the Preferred
-13-
<PAGE>
Securities), the lesser of (a) the amount of the Liquidation Distribution (as
defined herein), to the extent the Trust has funds available therefor at such
time, and (b) the amount of assets of the Trust remaining available for
distribution to holders of the Preferred Securities in liquidation of the Trust.
The holders of not less than a majority in Liquidation Amount of the Preferred
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 under the Guarantee. Any holder of the Preferred 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 (as defined in the
Guarantee). If the Company were to default on its obligation to pay amounts
payable under the Subordinated Debentures, the Trust would lack funds for the
payment of Distributions or amounts payable on redemption of the Preferred
Securities or otherwise, and, in such event, holders of Preferred Securities
would not be able to rely upon the Guarantee for such amounts. In the event,
however, that a Debenture Event of Default has occurred and is continuing and
such event is attributable to the failure of the Company to pay interest on or
principal of the Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Preferred Securities may institute
a legal proceeding directly against the Company for enforcement of payment to
such holder of the principal of or interest on such Subordinated Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder (a "Direct Action"). The exercise by the
Company of its right, as described herein, to defer the payment of interest on
the Subordinated Debentures does not constitute a Debenture Event of Default. In
connection with such Direct Action, the Company will have a right of set-off
under the Indenture to the extent of any payment made by the Company to such
holder of Preferred Securities in the Direct Action. Except as described herein,
holders of Preferred Securities will not be able to exercise directly any other
remedy available to the holders of the Subordinated Debentures or assert
directly any other rights in respect of the Subordinated Debentures. See
"Description of the Subordinated Debentures--Enforcement of Certain Rights by
Holders of Preferred Securities," "Description of the Subordinated
Debentures--Debenture Events of Default" and "Description of the Guarantee." The
Trust Agreement provides that each holder of Preferred Securities by acceptance
thereof agrees to the provisions of the Guarantee and the Indenture.
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have no voting rights, except in
limited circumstances relating only to the modification of the Preferred
Securities and the exercise of the rights of the Trust as holder of the
Subordinated Debentures and the Guarantee. Holders of Preferred Securities will
not be entitled to vote to appoint, remove or replace the Property Trustee or
the Delaware Trustee, as such voting rights are vested exclusively in the holder
of the Common Securities (except upon the occurrence of certain events described
herein). The Property Trustee, the Administrative Trustees and the Company may
amend the Trust Agreement without the consent of holders of Preferred Securities
to ensure that the Trust will be classified for United States federal income tax
purposes as a grantor trust even if such action adversely affects the interests
of such holders. See "Description of the Preferred Securities--Voting Rights;
Amendment of Trust Agreement" and "Description of the Preferred
Securities--Removal of the Trustees."
PROPOSED TAX LEGISLATION
On February 6, 1997, President Clinton proposed certain tax law changes
(the "1997 Proposed Legislation") that would, among other things, generally deny
corporate issuers a deduction for interest or OID in respect of certain debt
obligations if such debt obligations have a maximum term in excess of 15 years
and are not shown as indebtedness on the issuer's applicable consolidated
balance sheet. The 1997 Proposed Legislation was not included in the Taxpayer
Relief Act of 1997 as enacted, and was not included in President Clinton's 1999
budget proposal released in February 1998.
However, if legislation similar to the 1997 Proposed Legislation is enacted
in the future with retroactive effect, the Company would not be entitled to an
interest deduction with respect to the Subordinated Debentures. There can be no
assurance that legislation enacted after the date hereof will not adversely
affect, in the manner
-14-
<PAGE>
proposed in the 1997 Proposed Legislation or otherwise, the ability of the
Company to deduct the interest payable on the Subordinated Debentures.
Consequently, there can be no assurance that a Tax Event will not occur. A Tax
Event would permit the Company, upon approval of the Federal Reserve, if then
required under applicable capital guidelines or policies of the Federal Reserve,
to cause a redemption of the Preferred Securities before, as well as after, July
31, 2003. See "Description of the Subordinated Debentures--Redemption or
Exchange", "Description of the Preferred Securities--Redemption or Exchange--Tax
Event Redemption, Capital Treatment Event Redemption or Investment Company Event
Redemption" and "Certain Federal Income Tax Consequences-- Effect of Proposed
Changes in Tax Laws" and "Risk Factors--Redemption Upon Tax Event, Capital
Treatment Event or Investment Company Event."
EXCHANGE OF PREFERRED SECURITIES FOR SUBORDINATED DEBENTURES
The Company has the right at any time to dissolve, wind-up or terminate the
Trust and cause the Subordinated Debentures to be distributed to the holders of
the Preferred Securities in exchange therefor in liquidation of the Trust. The
exercise of such right is 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. The Company will have the right, in certain
circumstances, to redeem the Subordinated Debentures in whole or in part, in
lieu of a distribution of the Subordinated Debentures by the Trust, in which
event the Trust will redeem the Trust Securities on a pro rata basis to the same
extent as the Subordinated Debentures are redeemed by the Company. Any such
distribution or redemption prior to the Stated Maturity will be subject to prior
approval of the Federal Reserve, if then required under applicable capital
guidelines or policies of the Federal Reserve. See "Description of the Preferred
Securities--Redemption or Exchange--Tax Event Redemption, Capital Treatment
Event Redemption or Investment Company Event Redemption."
Under current United States federal income tax law, a distribution of
Subordinated Debentures upon the dissolution of the Trust would not be a taxable
event to holders of the Preferred Securities. If, however, the Trust is
characterized as an association taxable as a corporation at the time of the
dissolution of the Trust, the distribution of the Subordinated Debentures may
constitute a taxable event to holders of Preferred Securities. Moreover, upon
occurrence of a Tax Event, a dissolution of the Trust in which holders of the
Preferred Securities receive cash may be a taxable event to such holders. See
"Certain Federal Income Tax Consequences--Receipt of Subordinated Debentures or
Cash Upon Liquidation of the Trust."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities upon a dissolution or liquidation of the Trust. The
Preferred Securities or the Subordinated Debentures, may trade at a discount to
the price that the investor paid to purchase the Preferred Securities offered
hereby. Because holders of Preferred Securities may receive Subordinated
Debentures, prospective purchasers of Preferred Securities are also making an
investment decision with regard to the Subordinated Debentures and should
carefully review all the information regarding the Subordinated Debentures
contained herein.
If the Subordinated Debentures are distributed to the holders of Preferred
Securities upon the liquidation of the Trust, the Company will use its best
efforts to list the Subordinated Debentures on The Nasdaq Stock Market's
National Market or such stock exchanges, if any, on which the Preferred
Securities are then listed.
TRADING PRICE; ABSENCE OF PRIOR PUBLIC MARKET FOR THE PREFERRED SECURITIES
The Preferred Securities may trade at prices that do not fully reflect the
value of accrued but unpaid interest with respect to the underlying Subordinated
Debentures. A holder of Preferred Securities who uses the accrual method of
accounting (and a cash method holder if the Subordinated Debentures are deemed
to be issued with original issue discount ("OID")) that disposes of its
Preferred Securities between record dates for payments of Distributions (and
consequently does not receive a Distribution from the Trust for the period prior
to such disposition) will nevertheless be required to include accrued but unpaid
interest (or OID) on the Subordinated
-15-
<PAGE>
Debentures through the date of disposition in income as ordinary income and to
add the amount of any accrued OID to its adjusted tax basis in its pro rata
share of the underlying Subordinated Debentures deemed disposed of. Such holder
will recognize a capital loss to the extent the selling price (which may not
fully reflect the value of accrued but unpaid interest) is less than its
adjusted tax basis (which will include all accrued OID). 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
Consequences--Disposition of Preferred Securities."
There is no current public market for the Preferred Securities. Although
application has been made to approve the Preferred Securities for quotation on
The Nasdaq Stock Market's National Market, there can be no assurance that an
active public market will develop for the Preferred Securities or that, if such
market develops, the market price will equal or exceed the public offering price
set forth on the cover page of this Prospectus. The public offering price for
the Preferred Securities and the Distribution rate have been determined through
negotiations between the Company and the Underwriters. Prices for the Preferred
Securities will be determined in the marketplace and may be influenced by many
factors, including prevailing interest rates, the liquidity of the market for
the Preferred Securities, investor perceptions of the Company and general
industry and economic conditions.
PREFERRED SECURITIES ARE NOT INSURED
The Preferred Securities are not insured by the Bank Insurance Fund (the
"BIF") or the Savings Association Insurance Fund (the "SAIF") of the Federal
Deposit Insurance Corporation (the "FDIC") or by any other governmental agency.
EXPOSURE TO LOCAL ECONOMIC CONDITIONS
Although the Bank makes loans throughout the State of Maryland, the
Company's lending operations are concentrated primarily in the Bank's service
areas. Consequently, adverse changes in economic conditions in those service
areas, including a decline in the real estate market in the Bank's service areas
would impair the Company's ability to collect loans and would otherwise have a
negative effect on the financial condition of the Company.
INTEREST RATE RISK
Changes in interest rates can have significant effects on the Company's
profitability, which depends largely on its net interest income, the difference
between the interest income received on interest earning assets and the interest
expense incurred on interest bearing liabilities. The Company's net interest
income and the market value of its assets and liabilities could be significantly
affected by changes in interest rates. In a rising interest rate environment,
the Company anticipates that its net interest income could be adversely affected
as liabilities more quickly reprice to market interest rates than assets.
Additionally, loans and mortgage backed securities in the Company's portfolio
may prepay more rapidly than anticipated, reducing interest income as the
Company is unable to reinvest the proceeds of such prepayments at comparable
yields.
DIVIDEND RESTRICTIONS
The ability of the Company to pay amounts due on the Subordinated
Debentures is largely dependent on its receipt of dividends from the Bank. The
amount of dividends that the Bank may pay to the Company is limited by various
federal laws and by the regulations promulgated by their respective primary
regulators, which impose certain minimum capital requirements.
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<PAGE>
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities will be used by the
Trust to purchase the Subordinated Debentures from the Company. The net proceeds
to the Company from the sale of the Subordinated Debentures are estimated to be
$35.0 million (or $40.25 million if the Underwriters' over-allotment option is
exercised in full) before deducting the Underwriters' compensation and estimated
expenses. The Company proposes to use the net proceeds for general corporate
purposes, including use in the Bank's lending and investment activities, and to
allow the Company to pursue opportunities for future growth through possible
acquisitions. Pending such uses, the net proceeds from the sale of the
Subordinated Debentures may be invested in a variety of short term investment
securities.
MARKET FOR THE PREFERRED SECURITIES
Application has been made to have the Preferred Securities approved for
quotation on the Nasdaq National Market under the symbol "FCNBP". There can be
no assurance that such approval will be obtained. Sandler O'Neill & Partners,
L.P. and Legg Mason Wood Walker, Incorporated, have informed the Company that
they presently intend to make a market in the Preferred Securities. There can be
no assurance, however, that an active and liquid trading market will develop for
the Preferred Securities, or, if developed, that such a market will continue.
The offering price and Distribution rate have been determined by negotiations
among the Company and the Underwriters, and the offering price of the Preferred
Securities may not be indicative of the market price following the offering. See
"Underwriting."
ACCOUNTING TREATMENT
The Trust will be treated, for financial reporting purposes, as a
subsidiary of the Company and, accordingly, the accounts of the Trust will be
included in the consolidated financial statements of the Company. The Preferred
Securities will be presented as a separate category of long-term debt in the
consolidated statement of financial condition of the Company under the caption
"Guaranteed Preferred Beneficial Interests in the Company's Subordinated
Debentures," and appropriate disclosures about the Preferred Securities, the
Guarantee and the Subordinated Debentures will be included in the notes to
consolidated financial statements. The Company will record Distributions payable
on the Preferred Securities as an interest expense in the consolidated
statements of operations for financial reporting purposes.
All future reports of the Company filed under the Exchange Act will: (i)
present the Trust Securities issued by the Trust on the statement of financial
condition as a separate category of long-term debt entitled "Guaranteed
Preferred Beneficial Interests in the Company's Subordinated Debentures;" (ii)
include in a footnote to the financial statements disclosure that the sole
assets of the Trust are the Subordinated Debentures (including the outstanding
principal amount, interest rate and maturity date of such Subordinated
Debentures); and (iii) include in a footnote to the financial statements
disclosure that the Company owns all of the Common Securities of the Trust, the
sole assets of the Trust are the Subordinated Debentures, and the back-up
obligations, in the aggregate, constitute a full and unconditional guarantee by
the Company of the obligations of the Trust under the Preferred Securities.
-17-
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company at March 31, 1998, the unaudited pro forma combined capitalization of
the Company as of March 31, 1998 as if the merger of Capital into the Bank had
taken place, and such pro forma consolidated capitalization of the Company as
adjusted to give effect to the issuance of the Preferred Securities by the
Trust, and the sale of the Subordinated Debentures to the Trust by the Company.
The as adjusted presentations assume that the Offering was completed by March
31, 1998, and that the Underwriters' over-allotment option was not exercised.
<TABLE>
<CAPTION>
Pro Forma Combined
At March 31, 1998 At March 31, 1998
------------------------- -------------------------
As As
Actual Adjusted Actual Adjusted
------------------------- -------------------------
(dollars in thousands)
<S> <C> <C> <C> <C>
Long-Term Debt:
Guaranteed preferred beneficial interests in the
Company's subordinated debentures $ - $35,000 $ - $35,000
========================= =========================
Shareholders' Equity:
Preferred Stock, par value $1.00 per share;
1,000,000 authorized none issued $ - $ - $ - $ -
Common Stock, par value $1.00 per share;
20,000,000 shares authorized; 5,915,442
shares issued and outstanding, at March 31,
1998, and 7,143,182 shares issued and
outstanding in March 31, 1998 pro forma
combined based on 1.25 conversion ratio in
the merger. 5,915 5,915 7,143 7,143
Capital surplus 43,445 43,445 50,892 50,892
Retained earnings 26,134 26,134 27,290 27,290
Accumulated other comprehensive income 4,153 4,153 4,168 4,168
------------------------- -------------------------
Total shareholders' equity $79,647 $79,647 $89,493 $89,493
========================= =========================
Capital Ratios:
Leverage ratio(1)(2) 8.03% 10.71% 7.89% 10.51%
Tier 1 capital to risk - weighted assets(2) 11.08% 14.77% 10.95% 14.60%
Total capital to risk - weighted assets(2) 11.95% 17.33% 11.85% 16.45%
</TABLE>
(1) The leverage ratio is Tier 1 capital divided by quarterly average total
assets less intangibles.
(2) The total risk-based capital ratio, as adjusted, is computed including the
total estimated net proceeds from the sale of the Preferred Securities.
Federal Reserve guidelines limit the amount of the Preferred Securities and
cumulative perpetual preferred stock included in Tier 1 capital to an
aggregate of 25% of Tier 1 capital, and accordingly the leverage and Tier 1
capital ratios are computed excluding $11.0 million and $7.25 million of
the Preferred Securities in the As Adjusted columns for March 31, 1998, and
Pro Forma Combined, respectively.
-18-
<PAGE>
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The unaudited pro forma combined balance sheet and the unaudited pro forma
combined statements of income of the Company set forth below give effect, using
the pooling of interests method of accounting, to the proposed merger of Capital
Bank, National Association ("Capital") with and into the Bank based upon an
assumed conversion ratio of 1.25 shares of Company Common Stock for each share
of Capital Common Stock outstanding as of each respective period end. The
unaudited pro forma balance sheet is presented as though the proposed merger
occurred on March 31, 1998. The unaudited pro forma combined income statements
are presented as though the proposed merger occurred on January 1, 1995.
The unaudited pro forma financial information set forth below is for
illustrative purposes only and therefore is not necessarily indicative of the
financial condition or results of operations of the Company as they would have
been had the proposed merger occurred during the periods presented or as they
may be in the future.
-19-
<PAGE>
FCNB CORP AND SUBSIDIARY
PRO FORMA COMBINED BALANCE SHEET (Unaudited)
March 31, 1998
<TABLE>
<CAPTION>
Capital Pro Forma Pro Forma
Company Bank Adjustments Combined
----------- ------------ ------------ -----------
ASSETS (dollars in thousands)
<S> <C> <C> <C> <C>
Cash and due from banks $ 28,986 $ 8,618 $ - $ 37,604
Interest-bearing deposits in other banks 811 - - 811
Federal funds sold 19,196 12,800 - 31,996
----------- ------------ ------------ -----------
Cash and cash equivalents 48,993 21,418 - 70,411
----------- ------------ ------------ -----------
Loans held for sale 4,379 - - 4,379
Investment securities held to maturity 44,810 - - 44,810
Investment securities available for sale - 204,098 29,465 - 233,563
at fair value
----------- ------------ ------------ -----------
Loans 573,557 104,167 - 677,724
Less: Allowance for credit losses (5,711) (1,067) - (6,778)
Unearned income (65) (277) - (342)
----------- ------------ ------------ -----------
Net loans 567,781 102,823 - 670,604
----------- ------------ ------------ -----------
Bank premises and equipment 22,416 1,275 - 23,691
Other assets 34,421 1,402 - 35,823
----------- ------------ ------------ -----------
Total assets $926,898 $156,383 $ - $1,083,281
=========== ============ ============ ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Deposits:
Noninterest-bearing deposits $ 84,153 $ 27,053 $ - $ 111,206
Interest-bearing deposits 548,818 100,939 - 649,757
----------- ------------ ------------ -----------
Total deposits 632,971 127,992 - 760,963
Short-term borrowings:
Federal funds purchased and securities sold
under agreements to repurchase 34,449 15,970 - 50,419
Other short-term borrowings 173,137 747 - 173,884
Accrued interest and other liabilities 6,694 538 1,290 (a) 8,522
----------- ------------ ------------ -----------
Total liabilities 847,251 145,247 1,290 993,788
----------- ------------ ------------ -----------
SHAREHOLDERS' EQUITY
Common Stock 5,915 5,893 (4,665) (b) 7,143
Capital surplus 43,445 2,782 4,665 (b) 50,892
Retained earnings 26,134 2,446 (1,290) (a) 27,290
Accumulated other comprehensive income 4,153 15 - 4,168
----------- ------------ ------------ -----------
Total shareholders' equity 79,647 11,136 (1,290) 89,493
----------- ------------ ------------ -----------
Total liabilities and shareholders' equity $926,898 $156,383 $ - $1,083,281
=========== ============ ============ ===========
</TABLE>
The pro forma combined balance sheet has not been adjusted to reflect any of the
improvements in operating efficiencies that the Company anticipates may occur in
the future due to the merger.
-20-
<PAGE>
FCNB CORP AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME (Unaudited)
FOR THE THREE MONTHS ENDED MARCH 31, 1998
<TABLE>
<CAPTION>
Pro Forma
Company Capital Bank Combined
----------- ------------- -----------
Interest income: (dollars in thousands, except per share
amounts)
<S> <C> <C> <C>
Interest and fees on loans $12,716 $2,427 $15,143
Interest and dividends on investment securities:
Taxable 3,639 414 4,053
Tax exempt 67 - 67
Dividends 228 - 228
Interest on federal funds sold 144 271 415
Other interest income 10 - 10
----------- ------------- -----------
Total interest income 16,804 3,112 19,916
----------- ------------- -----------
Interest expense:
Interest on deposits 5,751 1,120 6,871
Interest on federal funds purchased and securities sold
under agreements to repurchase 637 217 854
Interest on other short-term borrowings 2,208 9 2,217
----------- ------------- -----------
Total interest expense 8,596 1,346 9,942
----------- ------------- -----------
Net interest income 8,208 1,766 9,974
Provision for credit losses 100 70 170
----------- ------------- -----------
Net interest income after provision for credit losses 8,108 1,696 9,804
----------- ------------- -----------
Noninterest income:
Service fees 756 156 912
Net securities gains 152 - 152
Gain on sale of loans 152 - 152
Other operating income 724 71 795
----------- ------------- -----------
Total noninterest income 1,784 227 2,011
----------- ------------- -----------
Noninterest expenses:
Salaries and employee benefits 3,574 641 4,215
Occupancy expenses 652 195 847
Equipment expenses 585 68 653
Merger related expenses 4 - 4
Other operating expenses 1,637 386 2,023
----------- ------------- -----------
Total noninterest expenses 6,452 1,290 7,742
----------- ------------- -----------
Income before provision for income taxes 3,440 633 4,073
Income tax expense 1,086 247 1,333
----------- ------------- -----------
Net income 2,354 386 2,740
----------- ------------- -----------
Other comprehensive net income, net of tax:
Unrealized gains (losses) on securities:
Unrealized holding gains (losses) arising during period 833 (15) 818
Less: reclassification adjustment for gains (losses)
included in net income, net of taxes of $56 96 - 96
----------- ------------- -----------
Other comprehensive net income 737 (15) 722
----------- ------------- -----------
Comprehensive income $3,091 $371 $3,462
=========== ============= ===========
Net income - before merger related expenses $2,354 $386 $2,740
=========== ============= ===========
Basic earnings per share $0.40 $0.39 $0.38
Diluted earnings per share $0.40 $0.38 $0.38
Basic earnings per share - before merger related $0.40 $0.39 $0.38
expenses
Diluted earnings per share - before merger related $0.40 $0.39 $0.38
expenses
Basic weighted average number of shares outstanding 5,914,562 977,450 7,136,375
Diluted weighted average number of shares outstanding 5,937,324 1,004,207 7,192,583
</TABLE>
The pro forma combined statement of income has not been adjusted to reflect any
of the improvements in operating efficiencies that the Company anticipates may
occur in the future due to the merger.
-21-
<PAGE>
FCNB CORP AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME (Unaudited)
FOR THE THREE MONTHS ENDED MARCH 31, 1997
<TABLE>
<CAPTION>
Pro Forma
Company Capital Bank Combined
----------- ------------- -----------
Interest income: (dollars in thousands, except per share
amounts)
<S> <C> <C> <C>
Interest and fees on loans $11,350 $2,191 $13,541
Interest and dividends on investment securities:
Taxable 2,956 344 3,300
Tax exempt 94 - 94
Dividends 149 - 149
Interest on federal funds sold 152 120 272
Other interest income 33 - 33
----------- ------------ ------------
Total interest income 14,734 2,655 17,389
----------- ------------ ------------
Interest expense:
Interest on deposits 5,267 847 6,114
Interest on federal funds purchased and securities sold
under agreements to repurchase 668 162 830
Interest on other short-term borrowings 1,021 7 1,028
----------- ------------ ------------
Total interest expense 6,956 1,016 7,972
----------- ------------ ------------
Net interest income 7,778 1,639 9,417
Provision for credit losses 231 50 281
----------- ------------ ------------
Net interest income after provision for credit losses 7,547 1,589 9,136
----------- ------------ ------------
Noninterest income:
Service fees 627 118 745
Net securities gains 87 2 89
Gain on sale of loans 148 - 148
Other operating income 431 55 486
----------- ------------ ------------
Total noninterest income 1,293 175 1,468
----------- ------------ ------------
Noninterest expense:
Salaries and employee benefits 3,103 607 3,710
Occupancy expenses 620 213 833
Equipment expenses 523 69 592
Merger related expenses 351 0 351
Other operating expenses 1,621 406 2,027
----------- ------------ ------------
Total noninterest expenses 6,218 1,295 7,513
----------- ------------ ------------
Income before provision for income taxes 2,622 469 3,091
Income tax expense 772 186 958
----------- ------------ ------------
Net Income 1,850 283 2,133
----------- ------------ ------------
Other comprehensive net income, net of tax:
Unrealized gains (losses) on securities:
Unrealized holding gains (losses) arising during period (1,013) (100) (1,113)
Less: reclassification adjustment for gains (losses) included in
net income, net of taxes of $32, $1 and $33, respectively 55 1 56
----------- ------------ ------------
Other comprehensive net income (1,068) (101) (1,169)
----------- ------------ ------------
Comprehensive income $782 $182 $964
=========== ============ ============
Net income - before merger related expenses $2,065 $283 $2,348
=========== ============ ============
Basic earnings per share $0.31 $0.29 $0.30
Diluted earnings per share $0.31 $0.29 $0.30
Basic earnings per share - before merger related expenses $0.35 $0.29 $0.33
Diluted earnings per share - before merger related expenses $0.35 $0.29 $0.33
Basic weighted average number of shares outstanding 5,899,521 971,420 7,113,796
Diluted weighted average number of shares outstanding 5,910,848 986,101 7,143,474
</TABLE>
The pro forma combined statement of income has not been adjusted to reflect any
of the improvements in operating efficiencies that the Company anticipates may
occur in the future due to the merger.
-22-
<PAGE>
FCNB CORP AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME (Unaudited)
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
Pro Forma
Company Capital Bank Combined
----------- ------------- -----------
Interest income: (dollars in thousands, except per share
amounts)
<S> <C> <C> <C>
Interest and fees on loans $48,562 $9,166 $57,728
Interest and dividends on investment securities:
Taxable 13,181 1,463 14,644
Tax exempt 341 - 341
Dividends 618 - 618
Interest on federal funds sold 389 807 1,196
Other interest income 100 - 100
---------- ------------ ------------
Total interest income 63,191 11,436 74,627
---------- ------------ ------------
Interest expense:
Interest on deposits 22,143 4,068 26,211
Interest on federal funds purchased and securities sold
under agreements to repurchase 2,819 609 3,428
Interest on other short-term borrowings 6,050 32 6,082
---------- ------------ ------------
Total interest expense 31,012 4,709 35,721
---------- ------------ ------------
Net interest income 32,179 6,727 38,906
Provision for credit losses 1,329 195 1,524
---------- ------------ ------------
Net interest income after provision for credit losses 30,850 6,532 37,382
---------- ------------ ------------
Noninterest income:
Service fees 2,855 548 3,403
Net securities gains 580 - 580
Gain on sale of loans 407 - 407
Other operating income 2,278 298 2,576
---------- ------------ ------------
Total noninterest income 6,120 846 6,966
---------- ------------ ------------
Noninterest expense:
Salaries and employee benefits 12,745 2,471 15,216
Occupancy expenses 2,463 807 3,270
Equipment expenses 2,027 282 2,309
Merger related expenses 460 - 460
Other operating expenses 6,254 1,784 8,038
---------- ------------ ------------
Total noninterest expenses 23,949 5,344 29,293
---------- ------------ ------------
Income before provision for income taxes 13,021 2,034 15,055
Income tax expense 4,218 811 5,029
---------- ------------ ------------
Net Income 8,803 1,223 10,026
---------- ------------ ------------
Other comprehensive net income, net of tax:
Unrealized gains (losses) on securities:
Unrealized holding gains (losses) arising during period 3,268 (15) 3,253
Less: reclassification adjustment for gains (losses)
included in net income, net of taxes of $224 356 - 356
---------- ------------ ------------
Other comprehensive net income 2,912 (15) 2,897
---------- ------------ ------------
Comprehensive income $11,715 $1,208 $12,923
========== ============ ============
Net income - before merger related expenses $9,088 $1,223 $10,311
========== ============ ============
Basic earnings per share $1.49 $1.26 $1.41
Diluted earnings per share $1.49 $1.22 $1.40
Basic earnings per share - before merger related expenses $1.54 $1.26 $1.45
Diluted earnings per share - before merger related expenses $1.54 $1.22 $1.44
Basic weighted average number of shares outstanding 5,903,868 972,360 7,119,318
Diluted weighted average number of shares outstanding 5,918,571 999,493 7,167,937
</TABLE>
The pro forma combined statement of income has not been adjusted to reflect any
of the improvements in operating efficiencies that the Company anticipates may
occur in the future due to the merger.
-23-
<PAGE>
FCNB CORP AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME (Unaudited)
FOR THE YEAR ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
Pro Forma
Company Capital Bank Combined
----------- ------------- -----------
Interest income: (dollars in thousands, except per share
amounts)
<S> <C> <C> <C>
Interest and fees on loans $42,948 $7,284 $50,232
Interest and dividends on investment securities:
Taxable 9,728 1,316 11,044
Tax exempt 505 - 505
Dividends 539 - 539
Interest on federal funds sold 759 504 1,263
Other interest income 174 - 174
----------- ------------- -----------
Total interest income 54,653 9,104 63,757
----------- ------------- -----------
Interest expense:
Interest on deposits 20,549 3,007 23,556
Interest on federal funds purchased and securities sold
under agreements to repurchase 1,357 527 1,884
Interest on other short-term borrowings 2,762 21 2,783
Interest on long-term debt 346 - 346
----------- ------------- -----------
Total interest expense 25,014 3,555 28,569
----------- ------------- -----------
Net interest income 29,639 5,549 35,188
Provision for credit losses 318 90 408
----------- ------------- -----------
Net interest income after provision for credit losses 29,321 5,459 34,780
----------- ------------- -----------
Noninterest income:
Service fees 2,454 477 2,931
Net securities gains 193 - 193
Gain on sale of loans 305 - 305
Other operating income 1,309 254 1,563
----------- ------------- -----------
Total noninterest income 4,261 731 4,992
----------- ------------- -----------
Noninterest expense:
Salaries and employee benefits 11,621 2,297 13,918
Occupancy expenses 2,419 752 3,171
Equipment expenses 1,599 245 1,844
Merger related expenses 2,865 - 2,865
Other operating expenses 5,966 1,374 7,340
----------- ------------- -----------
Total noninterest expenses 24,470 4,668 29,138
----------- ------------- -----------
Income before provision for income taxes 9,112 1,522 10,634
Income tax expense 3,245 591 3,836
----------- ------------- -----------
Net Income 5,867 931 6,798
----------- ------------- -----------
Other comprehensive net income, net of tax:
Unrealized gains (losses) on securities:
Unrealized holding gains (losses) arising during period 92 - 92
Less: reclassification adjustment for gains (losses)
included in net income, net of taxes of $75 118 - 118
----------- ------------- -----------
Other comprehensive net income (26) - (26)
----------- ------------- -----------
Comprehensive income $5,841 $931 $6,772
=========== ============= ===========
Net income - before merger related expenses $7,778 $931 $8,709
=========== ============= ===========
Basic earnings per share $0.99 $0.97 $0.95
Diluted earnings per share $0.99 $0.96 $0.95
Basic earnings per share - before merger related $1.31 $0.97 $1.22
expenses
Diluted earnings per share - before merger related $1.31 $0.96 $1.22
expenses
Basic weighted average number of shares outstanding 5,919,977 960,200 7,120,227
Diluted weighted average number of shares outstanding 5,933,411 969,897 7,145,782
</TABLE>
The pro forma combined statement of income has not been adjusted to reflect any
of the improvements in operating efficiencies that the Company anticipates may
occur in the future due to the merger.
-24-
<PAGE>
FCNB CORP AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME (Unaudited)
FOR THE YEAR ENDED DECEMBER 31, 1995
<TABLE>
<CAPTION>
Pro Forma
Company Capital Bank Combined
----------- ------------- -----------
Interest income: (dollars in thousands, except per share
amounts)
<S> <C> <C> <C>
Interest and fees on loans $39,341 $5,692 $45,033
Interest and dividends on investment securities:
Taxable 9,292 1,052 10,344
Tax exempt 1,211 - 1,211
Dividends 414 - 414
Interest on federal funds sold 457 543 1,000
Other interest income 411 - 411
----------- ------------- -----------
Total interest income 51,126 7,287 58,413
----------- ------------- -----------
Interest expense:
Interest on deposits 19,361 2,404 21,765
Interest on federal funds purchased and securities sold
under agreements to repurchase 1,122 380 1,502
Interest on other short-term borrowings 1,882 33 1,915
Interest on long-term debt 394 - 394
----------- ------------- -----------
Total interest expense 22,759 2,817 25,576
----------- ------------- -----------
Net interest income 28,367 4,470 32,837
Provision for credit losses 710 370 1,080
----------- ------------- -----------
Net interest income after provision for credit losses 27,657 4,100 31,757
----------- ------------- -----------
Noninterest income:
Service fees 2,104 512 2,616
Net securities gains 123 - 123
Gain on sale of loans 315 - 315
Other operating income 1,376 264 1,640
----------- ------------- -----------
Total noninterest income 3,918 776 4,694
----------- ------------- -----------
Noninterest expense:
Salaries and employee benefits 11,193 2,126 13,319
Occupancy expenses 1,683 708 2,391
Equipment expenses 1,438 172 1,610
Merger related expenses 303 - 303
Other operating expenses 6,072 1,299 7,371
----------- ------------- -----------
Total noninterest expenses 20,689 4,305 24,994
----------- ------------- -----------
Income before provision for income taxes 10,886 571 11,457
Income tax expense 3,888 (705) 3,183
----------- ------------- -----------
Net Income 6,998 1,276 8,274
----------- ------------- -----------
Other comprehensive net income, net of tax:
Unrealized gains (losses) on securities:
Unrealized holding gains (losses) arising during period 2,755 195 2,950
Less: reclassification adjustment for gains (losses)
included in net income, net of taxes of $48 75 - 75
----------- ------------- -----------
Other comprehensive net income 2,680 195 2,875
----------- ------------- -----------
Comprehensive income $9,678 $1,471 $11,149
=========== ============= ===========
Net income - before merger related expenses $7,301 $1,276 $8,577
=========== ============= ===========
Basic earnings per share $1.19 $1.42 $1.18
Diluted earnings per share $1.19 $1.42 $1.18
Basic earnings per share - before merger related $1.24 $1.42 $1.22
expenses
Diluted earnings per share - before merger related $1.24 $1.42 $1.22
expenses
Basic weighted average number of shares outstanding 5,881,129 896,881 7,002,230
Diluted weighted average number of shares outstanding 5,895,803 900,185 7,021,034
</TABLE>
The pro forma combined statement of income has not been adjusted to reflect any
of the improvements in operating efficiencies that the Company anticipates may
occur in the future due to the merger.
-25-
<PAGE>
NOTES TO UNAUDITED PRO FORMA COMBINED FINANCIAL STATEMENTS
(a) Represents the estimated merger costs that will be incurred by the Company
and Capital. These costs are not reflected in the Pro Forma Combined
Statements of Income since these items do not have a continuing impact on
the Company following the merger. The following table summarizes the
financial impact of the additional accruals as reflected in the Pro Forma
Combined Balance Sheet (in thousands):
Merger-Related Costs:
Compensation (severance and related costs) $ 650
Transaction costs (including investment bankers,
attorneys and accountants) 600
Data processing contract termination 200
Miscellaneous expenses 300
----------
Total merger-related costs 1,750
Income tax effect 460
----------
Net after tax adjustments $ 1,290
==========
The above estimated merger-related costs that will be incurred by the
Company and Capital include expenses that are estimated to be incurred from
the transaction. Compensation costs include estimated severance to Capital
employees and other related expenses as a result of merging administrative
staff.
(b) Represents the redemption of Capital's outstanding $6.00 per common share
par value, totalling $5.89 million, the issuance of the Company's $1.00 per
common share par value, totalling $1.23 million, based on the assumed 1.25
conversion ratio, and the net effect on capital surplus.
(c) Pro Forma Combined Company and Capital basic and diluted per Common Share
data have been determined based upon: (i) the combined historical net
income of the Company and Capital; and (ii) the combined historic weighted
average common equivalent shares of the Company and Capital. For purposes
of this determination, Capital's historical weighted average common shares
outstanding were increased to reflect the assumed 1.25 conversion ratio in
the merger.
-26-
<PAGE>
THE COMPANY
The Company was organized in 1986 to serve as the holding company for FCNB
Bank (the "Bank"), its principal operating subsidiary. The Bank, which was
originally chartered in 1818, was converted from a national bank charter to a
Maryland commercial bank in 1993, and is engaged in a general commercial and
consumer banking business, serving individuals and businesses in Frederick, Anne
Arundel, Carroll, Howard, Montgomery and Prince George's counties in Maryland.
The Bank is the sixth largest commercial banking institution headquartered in
Maryland.
The Bank is engaged in the financing of commerce and industry, providing
credit facilities and related services principally for businesses located in its
market areas. The Bank offers all forms of commercial lending, including lines
of credit, revolving credits, term loans, accounts receivable financing, real
estate loans and other forms of secured financing. The Bank also provides a wide
range of personal banking services to consumers, including checking and savings
account products, installment and personal loans, credit cards, home equity and
mortgage loans, automobile loans, safe deposit boxes and other services.
At March 31, 1998, the Company had assets of approximately $926.9 million,
total deposits of approximately $633.0 million, and total shareholders' equity
of approximately $79.6 million. The principal executive office of the Company is
located at 7200 FCNB Court, Frederick, Maryland 21703, and its telephone number
is (301) 662-2191.
Over the past five years, the Company has achieved significant growth in
assets. From 1993 to 1997, the Company's assets grew at an 11.1% compound annual
growth rate, and increased by $8.8 million, or 0.96% in the first three months
of 1998. The Company has achieved its growth both internally and through
acquisition. In addition to a recently completed branch purchase transaction,
the Company has completed three whole bank acquisitions since 1995, consummating
the acquisition of Elkridge Bank (March 1995), of Laurel Federal Savings Bank
(January 1996) and Odenton Federal Savings and Loan Association (April 1996), as
well as a number of smaller branch transactions. The Company has also had a
history of earnings growth. Net income (before extraordinary charges and merger
related expenses) grew at a compound annual growth rate of 7.2% from 1993 to
1997. For the five year period from 1993 to 1997, the Company's average annual
return on average assets (before merger-related expenses) was 1.15%. The
annualized return on average equity and the annualized return on average assets
for the three months ended March 31, 1998 were 12.11% and 1.04%, respectively.
The Company routinely explores opportunities for additional growth and
expansion of its core banking business and related activities, including the
acquisition of companies engaged in banking or other related activities, and
internally generated growth. There can be no assurance, however, that the
Company will be able to grow, or if it does, that any such growth or expansion
will result in an increase in the Company's earnings, dividends, book value or
market value of its securities.
RECENT DEVELOPMENTS
On June 23, 1998, the Company entered into an Agreement and Plan of
Reorganization and Merger pursuant to which it will acquire Capital Bank,
National Association ("Capital"), through the merger of Capital with and into
the Bank. Capital, the main office of which is in Rockville, Maryland, has three
branches, two located in the District of Columbia and one in Tysons Corner,
Virginia. FCNB anticipates that it will issue approximately 1,300,000 shares of
common stock in connection with the transaction, subject to adjustment, for an
aggregate deal value of approximately $42.0 million. At March 31, 1998, Capital
had total assets of approximately $156.4 million, deposits of $128.0 million,
and total shareholders' equity of $11.14 million. For the three months ended
March 31, 1998 and the year ended December 31, 1997, Capital had net income of
$386,000 and $1.2 million, respectively. It is anticipated that the merger will
be accounted for as a pooling of interests. The Company anticipates that it will
incur one-time pretax charges of approximately $1.75 million upon consummation
of the merger. The consummation of
-27-
<PAGE>
the merger remains subject to regulatory and shareholder approvals, and the
satisfaction of a number of other conditions. FCNB currently anticipates that
the merger will be consummated in the fourth quarter of 1998.
On June 26, 1998, the Bank consummated a transaction pursuant to which it
assumed the deposit liabilities, and purchased certain assets, relating to four
branches of First Virginia Bank-Maryland located in Montgomery County, Maryland,
and three branches of its sister bank, Farmer's Bank of Maryland, located in
Baltimore County, Maryland. The seven branches held approximately $48.0 million
in deposits at December 31, 1997. The purchase and assumption transaction brings
the total number of branches operated by the Company to 28, its total deposits
to approximately $681.0 million and its total assets to approximately $974.9
million.
THE TRUST
FCNB Capital Trust (the "Trust") is a statutory business trust formed under
Delaware law pursuant to: (i) a trust agreement, dated as of May 6, 1998,
executed by the Company, as depositor, and the trustees of the Trust (together
with the Property Trustee, the "Trustees"), and (ii) a certificate of trust
filed with the Secretary of State of the State of Delaware on May 7, 1998. The
initial trust agreement will be amended and restated in its entirety (as so
amended and restated, the "Trust Agreement") substantially in the form filed as
an exhibit to the Registration Statement of which this Prospectus forms a part.
The Trust Agreement will be qualified as an indenture under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
Upon issuance of the Preferred Securities, the purchasers thereof will own
all of the Preferred Securities. The Company will acquire all of the Common
Securities, which will represent an aggregate liquidation amount equal to at
least 3% of the total capital of the Trust. The Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and during the continuance of an
Event of Default (as defined herein) under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise will be subordinated to the rights of the holders of the
Preferred Securities. See "Description of the Preferred
Securities--Subordination of Common Securities."
The Trust exists for the exclusive purposes of: (i) issuing the Trust
Securities representing undivided beneficial interests in the assets of the
Trust; (ii) investing the gross proceeds of the Trust Securities in the
Subordinated Debentures issued by the Company; and (iii) engaging in only those
other activities necessary, advisable, or incidental thereto. The Subordinated
Debentures and payments thereunder will be the only assets of the Trust and
payments under the Subordinated Debentures will be the only revenue of the
Trust. The Trust has a term of 35 years, but may terminate earlier as provided
in the Trust Agreement.
The principal executive office of the Trust is located at 7200 FCNB Court,
Frederick, Maryland 21703, and its telephone number is (301) 662-2191.
The number of Trustees will, pursuant to the Trust Agreement, as amended,
initially be five. Three of the Trustees (the "Administrative Trustees") will be
persons who are employees or officers of, or who are affiliated with, the
Company. The fourth trustee will be a financial institution that is unaffiliated
with the Company, which trustee will serve as institutional trustee under the
Trust Agreement and as indenture trustee for the purposes of compliance with the
provisions of the Trust Indenture Act (the "Property Trustee"). State Street
Bank and Trust Company, a state chartered trust company organized under the laws
of the Commonwealth of Massachusetts, will be the Property Trustee until removed
or replaced by the holder of the Common Securities. For purposes of compliance
with the provisions of the Trust Indenture Act, State Street Bank and Trust
Company will also act as trustee (the "Guarantee Trustee") under the Guarantee
and as Debenture Trustee (as defined herein) under the Indenture. The fifth
trustee will be an entity that maintains its principal place of business in the
State of Delaware (the "Delaware Trustee"). Wilmington Trust Company, a Delaware
chartered trust company, will act as Delaware Trustee.
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The Property Trustee will hold title to the Subordinated Debentures for the
benefit of the holders of the Trust Securities and in such capacity will have
the power to exercise all rights, powers and privileges under the Indenture. The
Property Trustee will also maintain exclusive control of a segregated
non-interest-bearing bank account (the "Property Account") to hold all payments
made in respect of the Subordinated Debentures for the benefit of the holders of
the Trust Securities. The Property Trustee will make payments of Distributions
and payments on liquidation, redemption and otherwise to the holders of the
Trust Securities out of funds from the Property Account. The Guarantee Trustee
will hold the Guarantee for the benefit of the holders of the Preferred
Securities. The Company, as the holder of all the Common Securities, will have
the right to appoint, remove or replace any Trustee and to increase or decrease
the number of Trustees. The Company will pay all fees and expenses related to
the Trust and the offering of the Trust Securities.
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the Trust
Agreement, the Delaware Business Trust Act (the "Trust Act") and the Trust
Indenture Act. See "Description of the Preferred Securities."
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DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the Trust
Agreement. The Trust Agreement will be qualified as an indenture under the Trust
Indenture Act. The Property Trustee, State Street Bank and Trust Company, will
act as indenture trustee for the Preferred Securities under the Trust Agreement
for purposes of complying with the provisions of the Trust Indenture Act. The
terms of the Preferred Securities will include those stated in the Trust
Agreement and those made part of the Trust Agreement by the Trust Indenture Act.
The following summary of the material terms and provisions of the Preferred
Securities and the Trust Agreement does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the Trust
Agreement, the Trust Act, and the Trust Indenture Act. Wherever particular
defined terms of the Trust Agreement are referred to, but not defined herein,
such defined terms are incorporated herein by reference. The form of the Trust
Agreement has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part.
GENERAL
Pursuant to the terms of the Trust Agreement, the Trustees, on behalf of
the Trust, will issue the Trust Securities. All of the Common Securities will be
owned by the Company. The Preferred Securities will represent preferred
undivided beneficial interests in the assets of the Trust, and the holders
thereof will be entitled to a preference in certain circumstances with respect
to Distributions and amounts payable on redemption or liquidation over the
Common Securities, as well as other benefits as described in the Trust
Agreement. The Trust Agreement does not permit the issuance by the Trust of any
securities other than the Trust Securities or the incurrence of any indebtedness
by the Trust.
The Preferred Securities will rank pari passu, and payments will be made
thereon pro rata, with the Common Securities, except as described under
"--Subordination of Common Securities." Legal title to the Subordinated
Debentures will be held by the Property Trustee in trust for the benefit of the
holders of the Trust Securities. The Guarantee executed by the Company for the
benefit of the holders of the Preferred Securities will be a guarantee on a
subordinated basis with respect to the Preferred Securities, but will not
guarantee payment of Distributions or amounts payable on redemption or
liquidation of such Preferred Securities when the Trust does not have funds on
hand available to make such payments. State Street Bank and Trust Company, as
Guarantee Trustee, will hold the Guarantee for the benefit of the holders of the
Preferred Securities. See "Description of the Guarantee."
DISTRIBUTIONS
Payment of Distributions. Distributions on each Preferred Security will be
payable at the annual rate of 8.25% of the stated Liquidation Amount, payable
quarterly in arrears on the last day of January, April, July and October of each
year, to the holders of the Preferred Securities on the relevant record dates
(each date on which Distributions are payable in accordance with the foregoing,
a "Distribution Date"). Distributions on the Preferred Securities will be
payable to the holders thereof as they appear on the register of holders of the
Preferred Securities on the relevant record dates, which will be the 15th day of
the month in which the relevant Distribution Date occurs. Distributions will
accumulate from July 20, 1998, the date of original issuance. The first
Distribution Date for the Preferred Securities will be October 31, 1998. The
amount of Distributions payable for any period will be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
Distributions are payable on the Preferred Securities is not a Business Day,
then payment of the Distributions payable on such date will be made on the next
succeeding day that is a Business Day (and without any additional Distributions,
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 due and payable.
"Business Day" means any day other than a Saturday or a Sunday, a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to remain closed, or a day on which the corporate trust
office of the Property Trustee or the Debenture Trustee is closed for business.
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Extension Period. The Company has the right under the Indenture, so long as
no Debenture Event of Default has occurred and is continuing, to defer the
payment of interest on the Subordinated Debentures at any time, or from time to
time (each, an "Extension Period"), which, if exercised, would defer quarterly
Distributions on the Preferred Securities during any such Extension Period.
Distributions to which holders of the Preferred Securities are entitled, but
which are deferred during the Extension Period, will accumulate additional
Distributions thereon at the rate per annum of 8.25% thereof, compounded
quarterly from the relevant Distribution Date. "Distributions," as used herein,
includes any such additional Distributions. The right to defer the payment of
interest on the Subordinated Debentures is limited, however, to a period, in
each instance, not exceeding 20 consecutive quarters and no Extension Period may
extend beyond the Stated Maturity of the Subordinated Debentures. 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; (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu with or junior in interest
to the Subordinated Debentures; (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to the
Subordinated Debentures; or (iv) redeem, purchase or acquire less than all of
the Subordinated Debentures or any of the Preferred Securities (except that the
Company may make: (a) dividends or distributions payable in common stock of the
Company; (b) any declaration of a dividend in connection with the implementation
of a stockholder rights plan, any issuance under any such plan, or the
repurchase or redemption of any such rights pursuant thereto; (c) payments under
the Guarantee; and (d) purchases of common stock of the Company in connection
with the distribution or sale of shares of Company common stock pursuant to the
benefit plans of the Company and any subsidiary for its directors, officers or
employees). Prior to the termination of any such Extension Period, the Company
may further defer the payment of interest; provided that such Extension Period
may not exceed 20 consecutive quarters or extend beyond the Stated Maturity of
the Subordinated Debentures. 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 above requirements. Subject to the foregoing,
there is no limitation on the number of times that the Company may elect to
begin an Extension Period.
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures.
Source Of Distributions. The funds of the Trust available for distribution
to holders of its Preferred Securities will be limited to payments under the
Subordinated Debentures in which the Trust will invest the proceeds from the
issuance and sale of its Trust Securities. See "Description of the Subordinated
Debentures." Distributions will be paid through the Property Trustee who will
hold amounts received in respect of the Subordinated Debentures in the Property
Account for the benefit of the holders of the Trust Securities. If the Company
does not make interest payments on the Subordinated Debentures, the Property
Trustee will not have funds available to pay Distributions on the Preferred
Securities. The payment of Distributions (if and to the extent the Trust has
funds legally available for the payment of such Distributions and cash
sufficient to make such payments) is guaranteed by the Company. See "Description
of the Guarantee."
REDEMPTION OR EXCHANGE
General. The Subordinated Debentures will mature on July 31, 2028. The
Company will have the right to redeem the Subordinated Debentures: (i) on or
after July 31, 2003, in whole at any time or in part from time to time, or (ii)
at any time, in whole (but not in part), within 90 days following the occurrence
of a Tax Event, a Capital Treatment Event or an Investment Company Event, in
each case subject to receipt of prior approval by the Federal Reserve, if then
required under applicable capital guidelines or policies of the Federal Reserve.
The Company will not have the right to purchase the Subordinated Debentures, in
whole or in part, from the Trust until after July 31, 2003. See "Description of
the Subordinated Debentures--General."
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Mandatory Redemption. Upon the repayment or redemption, in whole or in
part, of any Subordinated Debentures, whether at Stated Maturity or upon earlier
redemption as provided in the Indenture, the proceeds from such repayment or
redemption will 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, at a redemption price (the "Redemption Price") equal to the
aggregate Liquidation Amount of such Trust Securities, plus accumulated but
unpaid Distributions thereon to the date of redemption (the "Redemption Date").
See "Description of the Subordinated Debentures--Redemption or Exchange." If
less than all of the Subordinated Debentures are to be repaid or redeemed on a
Redemption Date, then the proceeds from such repayment or redemption will be
allocated to the redemption of the Trust Securities pro rata.
Distribution of Subordinated Debentures. Subject to the Company having
received prior approval of the Federal Reserve, if so required under applicable
capital guidelines or policies of the Federal Reserve, the Company will have the
right at any time to dissolve, wind-up or terminate the Trust and, after
satisfaction of the liabilities of creditors of the Trust as provided by
applicable law, cause the Subordinated Debentures to be distributed to the
holders of Trust Securities in liquidation of the Trust. See "--Liquidation
Distribution Upon Termination."
Tax Event Redemption, Capital Treatment Event Redemption or Investment
Company Event Redemption. If a Tax Event, a Capital Treatment Event or an
Investment Company Event in respect of the Trust Securities occurs and is
continuing, the Company has the right to redeem the Subordinated Debentures in
whole (but not in part) and thereby cause a mandatory redemption of such Trust
Securities at any time, in whole (but not in part,) at the Redemption Price,
within 90 days following the occurrence of such Tax Event, Capital Treatment
Event or Investment Company Event. In the event a Tax Event, a Capital Treatment
Event or an Investment Company Event in respect of the Trust Securities has
occurred and the Company does not elect to redeem the Subordinated Debentures
and thereby cause a mandatory redemption of such Trust Securities or to
liquidate the Trust and cause the Subordinated Debentures to be distributed to
holders of such Trust Securities in liquidation of the Trust as described below
under "--Liquidation Distribution Upon Termination," such Preferred Securities
will remain outstanding and Additional Interest (as defined herein) may be
payable on the Subordinated Debentures. See "Risk Factors--Redemption upon Tax
Event, Capital Treatment Event or Investment Company Event."
"Additional Interest" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on the
outstanding Trust Securities will not be reduced as a result of any additional
taxes, duties and other governmental charges to which the Trust has become
subject as a result of a Tax Event.
"Like Amount" means: (i) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Subordinated Debentures to be contemporaneously redeemed in
accordance with the Indenture, which will be used to pay the Redemption Price of
such Trust Securities, and (ii) with respect to a distribution of Subordinated
Debentures to holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Subordinated Debentures having a principal amount
equal to the Liquidation Amount of the Trust Securities of the holder to whom
such Subordinated Debentures are distributed. Each Subordinated Debenture
distributed pursuant to clause (ii) above will carry with it accumulated
interest in an amount equal to the accumulated and unpaid interest then due on
such Subordinated Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
After the liquidation date fixed for any distribution of Subordinated
Debentures for Preferred Securities (i) such Preferred Securities will no longer
be deemed to be outstanding, and (ii) any certificates representing Preferred
Securities will be deemed to represent the Subordinated Debentures having a
principal amount equal to the Liquidation Amount of such Preferred Securities,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on the Preferred Securities until such certificates are
presented to the Administrative Trustees or their agent for transfer or
reissuance.
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There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution and liquidation of the Trust were to
occur. The Preferred Securities that an investor may purchase, or the
Subordinated Debentures that an investor may receive on dissolution and
liquidation of the Trust, may, therefore, trade at a discount to the price that
the investor paid to purchase the Preferred Securities offered hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date will be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Subordinated Debentures. Redemptions of the Preferred
Securities will be made and the Redemption Price will be payable on each
Redemption Date only to the extent that the Trust has funds on hand available
for the payment of such Redemption Price. See "--Subordination of Common
Securities."
If the Trust gives a notice of redemption in respect of its Preferred
Securities, then, by 12:00 noon, eastern standard time, on the Redemption Date,
to the extent funds are available, the Property Trustee will irrevocably deposit
with the paying agent for the Preferred Securities funds sufficient to pay the
aggregate Redemption Price, and will give the paying agent for the Preferred
Securities irrevocable instructions and authority to pay the Redemption Price to
the holders thereof upon surrender of their certificates evidencing such
Preferred Securities. Notwithstanding the foregoing, Distributions payable on or
prior to the Redemption Date for any Preferred Securities called for redemption
will be payable to the holders of such Preferred Securities on the relevant
record dates for the related Distribution Dates. If notice of redemption will
have been given and funds deposited as required, then upon the date of such
deposit, all rights of the holders of such Preferred Securities so called for
redemption will cease, except the right of the holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price, and such Preferred Securities will cease to be outstanding. In
the event that any date fixed for redemption of Preferred Securities is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day which is a Business Day (and without any
additional Distribution, interest or other payment in respect of any such delay)
with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of Preferred Securities called for
redemption is improperly withheld or refused and not paid either by the Trust,
or by the Company pursuant to the Guarantee, Distributions on such Preferred
Securities will continue to accrue at the applicable rate, from the Redemption
Date originally established by the Trust for such Preferred Securities to the
date such Redemption Price is actually paid, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Redemption Price. See "Description of the Guarantee."
Subject to applicable law (including, without limitation, United States
federal securities law), and provided that the Company does not and is not
continuing to exercise its right to defer interest payments, the Company or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities will be made to
the recordholders thereof as they appear on the register for the Preferred
Securities on the record date, which date will be the date 15 days prior to the
Redemption Date. In the event of the liquidation of the Trust, the Subordinated
Debentures will be distributed to holders of Preferred Securities as they appear
on the register for the Preferred Securities on the record date, which will be
not more than 45 days prior to the Liquidation Date.
If less than all of the Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of such Trust Securities to be
redeemed will be allocated pro rata to the Trust Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed will be selected by the Property Trustee from the
outstanding Preferred Securities not previously called for redemption, by such
method as the Property Trustee deems fair and appropriate and which may provide
for the selection for redemption of portions (equal to $25 or an integral
multiple of $25 in excess thereof) of the Liquidation Amount
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of Preferred Securities of a denomination larger than $25. The Property Trustee
will promptly notify the registrar for the Preferred Securities in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of the Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities will relate to the portion of the aggregate Liquidation
Amount of Preferred Securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days, but not more than
60 days, before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the redemption price on the Subordinated Debentures, on and after the Redemption
Date interest will cease to accrue on such Subordinated Debentures or portions
thereof (and Distributions will cease to accrue on the related Preferred
Securities or portions thereof) called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Preferred
Securities and Common Securities, as applicable, will be made pro rata based on
the Liquidation Amount of the Preferred Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default has occurred and is continuing, no payment of any
Distribution on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such Common Securities, will be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price, the full amount of such Redemption
Price on all of the outstanding Preferred Securities then called for redemption,
will have been made or provided for, and all funds available to the Property
Trustee will first be applied to the payment in full in cash of all
Distributions on, or Redemption Price of, the Preferred Securities then due and
payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Company as holder of the Common Securities will be deemed to have
waived any right to act with respect to any such Event of Default under the
Trust Agreement until the effect of all such Events of Default with respect to
the Preferred Securities have been cured, waived or otherwise eliminated. Until
any such Events of Default under the Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee will act solely on behalf of the holders of the Preferred
Securities and not on behalf of the Company, as holder of the Common Securities,
and only the holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
The Company will have the right at any time to dissolve, wind-up or
terminate the Trust and cause the Subordinated Debentures to be distributed to
the holders of the Preferred Securities. Such right is subject, however, to the
Company having received prior approval of the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve.
Additionally, pursuant to the Trust Agreement, the Trust will automatically
dissolve upon expiration of its term, and will dissolve earlier on the first to
occur of: (i) certain events of bankruptcy, dissolution or liquidation of the
Company; (ii) the distribution of a Like Amount of the Subordinated Debentures
to the holders of its Trust Securities, if the Company, as depositor, has given
written direction to the Property Trustee to terminate the Trust (which
direction is optional and wholly within the discretion of the Company, as
depositor); (iii) redemption of all of the Preferred Securities as described
under "Description of the Preferred Securities--Redemption or
Exchange--Mandatory Redemption;" or (iv) the entry of an order for the
dissolution of the Trust by a court of competent jurisdiction (each an "Early
Termination Event").
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If an Early Termination Event described in clause (i), (ii) or (iv) of the
preceding paragraph occurs, the Trust will be liquidated by the Trustees as
expeditiously as the 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 such Trust Securities a Like Amount of the Subordinated
Debentures, unless such distribution is determined by the Property Trustee not
to be practical, in which event such holders will be entitled to receive out of
the assets of the Trust available for distribution to holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to, in the case of holders of Preferred Securities, the
aggregate of the Liquidation Amount plus accrued and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on the
Preferred Securities will be paid on a pro rata basis. The Company, as the
holder of the Common Securities, will be entitled to receive distributions upon
any such liquidation pro rata with the holders of the Preferred Securities,
except that, if a Debenture Event of Default has occurred and is continuing, the
Preferred Securities will have a priority over the Common Securities. See
"--Subordination of Common Securities."
Under current United States federal income tax law and interpretations and
assuming, as expected, that the Trust is treated as a grantor trust, a
distribution of the Subordinated Debentures should not be a taxable event to
holders of the Preferred Securities. Should there be a change in law, a change
in legal interpretation, a Tax Event or other circumstances, however, the
distribution could be a taxable event to holders of the Preferred Securities.
See "Certain Federal Income Tax Consequences--Receipt of Subordinated Debentures
or Cash Upon Liquidation of the Trust." If the Company elects neither to redeem
the Subordinated Debentures prior to maturity nor to liquidate the Trust and
distribute the Subordinated Debentures to holders of the Preferred Securities,
the Preferred Securities will remain outstanding until the repayment of the
Subordinated Debentures.
If the Company elects to dissolve the Trust and thereby causes the
Subordinated Debentures to be distributed to holders of the Preferred Securities
in liquidation of the Trust, the Company will continue to have the right to
shorten the maturity of such Subordinated Debentures, subject to certain
conditions. See "Description of the Subordinated Debentures--General."
LIQUIDATION VALUE
The amount of the Liquidation Distribution payable on the Preferred
Securities in the event of any liquidation of the Trust is $25 per Preferred
Security, plus accrued and unpaid Distributions thereon to the date of payment,
which may be in the form of a distribution of such amount in Subordinated
Debentures, subject to certain exceptions. See "--Liquidation Distribution Upon
Termination."
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an event of default under the
Trust Agreement (an "Event of Default") with respect to the Preferred Securities
(whatever the reason for such Event of Default and whether voluntary or
involuntary or 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) the occurrence of a Debenture Event of Default (see "Description of the
Subordinated Debentures--Debenture Events of Default"); or
(ii) default by the Trust or the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust or the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable; or
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(iv) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in the Trust Agreement (other than a
covenant or warranty a default in the performance of which or the breach of
which is dealt with in clauses (ii) or (iii) above), and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee(s) by the holders of at
least 25% in aggregate Liquidation Amount of the outstanding Preferred
Securities, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" under the
Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee will transmit
notice of such Event of Default to the holders of the Preferred Securities, the
Administrative Trustees and the Company, as depositor, unless such Event of
Default has been cured or waived. The Company, as depositor, 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 Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities will have a preference over the Common Securities upon
termination of the Trust. See "--Liquidation Distribution Upon Termination." The
existence of an Event of Default does not entitle the holders of Preferred
Securities to accelerate the maturity thereof.
REMOVAL OF THE TRUSTEES
Unless a Debenture Event of Default has occurred and is continuing, any
Trustee may be removed at any time by the Company as 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 Preferred
Securities. In no event, however, will the holders of the Preferred 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 a Trustee and no
appointment of a successor trustee will be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default has occurred and is continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property (as defined
in the Trust Agreement) may at the time be located, the Company, as the holder
of the Common Securities, will have power along with the Property Trustee to
appoint one or more Persons (as defined in the Trust Agreement) either to act as
a co-trustee, jointly with the Property Trustee, of all or any part of such
Trust Property, or to act as separate trustee of any such Trust Property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of the Trust Agreement. In case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone will have power to make
such appointment.
MERGER OR CONSOLIDATION OF TRUSTEES
Any Person 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 Person resulting from any merger,
conversion or consolidation to which such Trustee is a party, or any Person
succeeding to all or
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substantially all the corporate trust business of such Trustee, will be the
successor of such Trustee under the Trust Agreement, provided such Person is
otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described below. The Trust
may, at the request of the Company, with the consent of the Administrative
Trustees and without the consent of the holders of the Preferred Securities, the
Property Trustee or the Delaware Trustee, merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets 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 Preferred
Securities, or (b) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
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 in its capacity as the holder of the 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 Preferred Securities are then listed, if any;
(iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, (v) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Company has received an opinion
from independent counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, 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, and
(vi) the Company 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, the Indenture, the
Subordinated Debentures, the Trust Agreement and the Expense Agreement.
Notwithstanding the foregoing, the Trust will not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under "Description of the
Guarantee--Amendments and Assignment" and as otherwise required by law and the
Trust Agreement, the holders of the Preferred Securities will have no voting
rights.
The Trust Agreement 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 Preferred Securities: (i) with respect to acceptance of
appointment by a successor trustee; (ii) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent with
any other provision, or to make any other provisions with respect to matters or
questions arising under the Trust Agreement (provided such amendment is not
inconsistent with the other provisions of the Trust Agreement); or (iii) to
modify, eliminate or add to any provisions of the Trust Agreement to such extent
as is 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; provided,
however, that in the case of clause (ii), such action may not adversely affect
in any material respect the interests of any holder of Trust Securities, and any
amendments of such Trust Agreement will become effective when notice thereof is
given to the holders of
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Trust Securities. The Trust Agreement may be amended by the Trustees and the
Company with: (i) the consent of holders representing not less than a majority
in the aggregate Liquidation Amount of the outstanding Trust Securities; and
(ii) receipt by the Trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the 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. Notwithstanding
anything in this paragraph to the contrary, without the consent of each holder
of Trust Securities, the Trust Agreement may not be amended to (a) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date, or (b) restrict the right of a
holder of Trust Securities to institute suit for the enforcement of any such
payment on or after such date.
The Trustees will not, so long as any Subordinated Debentures are held by
the Property Trustee: (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 Property Trustee with respect to the
Subordinated Debentures; (ii) waive any past default that is waivable under the
Indenture; (iii) exercise any right to rescind or annul a declaration that the
principal of all the Subordinated Debentures will be due and payable; or (iv)
consent to any amendment, modification or termination of the Indenture or the
Subordinated Debentures, where such consent is required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Preferred Securities; provided, however,
that where a consent under the Indenture requires the consent of each holder of
Subordinated Debentures affected thereby, no such consent will be given by the
Property Trustee without the prior consent of each holder of the Preferred
Securities. The Trustees may not revoke any action previously authorized or
approved by a vote of the holders of the Preferred Securities except by
subsequent vote of the holders of the Preferred Securities. The Property Trustee
will notify each holder of Preferred Securities of any notice of default with
respect to the Subordinated Debentures. In addition to obtaining the foregoing
approvals of the holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustees must 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 Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or pursuant
to written consent. The Property Trustee will cause a notice of any meeting at
which holders of Preferred 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 Preferred Securities in the manner set forth in the
Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for the Trust to redeem and cancel its Preferred Securities in accordance with
the Trust Agreement.
Notwithstanding the fact that holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company, the Trustees or any
affiliate of the Company or any Trustee, will, for purposes of such vote or
consent, be treated as if they were not outstanding.
BOOK-ENTRY SECURITIES; DELIVERY AND FORM
The Preferred Securities will be issued in the form of one or more global
certificates ("Global Preferred Securities") registered in the name of and
deposited with, or on behalf of, the Depository Trust Company as depository
("DTC"). Global Preferred Securities may be issued only in fully registered form
and in either temporary or permanent form. Beneficial interests in the Preferred
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by DTC. Except as described below, certificates for
Preferred Securities will not be issued in exchange for the global certificates.
See "Book-Entry Issuance."
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Unless and until it is exchanged in whole or in part for the individual
Preferred Securities represented thereby, a Global Preferred Security may not be
transferred except as a whole by DTC to a nominee of DTC, or by a nominee of DTC
to DTC or another nominee of DTC, or by DTC or any nominee to a successor
depository or any nominee of such successor.
The Global Preferred Security will be exchangeable for Preferred Securities
registered in the names of persons other than DTC or its nominee only if: (i)
DTC notifies the Trust that it is unwilling or unable to continue as a
depository for such global security and no successor depository shall have been
appointed, or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act at a time when DTC is required to be so registered to act as
such depository; (ii) the Company in its sole discretion determines that such
global security shall be so exchangeable; or (iii) there shall have occurred and
be continuing a Debenture Event of Default. Any Global Preferred Security that
is exchangeable pursuant to the preceding sentence shall be exchangeable for
definitive certificates registered in such names as DTC shall direct. It is
expected that such instructions will be based upon directions received by DTC
from its Participants with respect to ownership of beneficial interests in such
global security. In the event that Preferred Securities are issued in definitive
form, such Preferred Securities will be in denominations of $25 and integral
multiples thereof and may be transferred or exchanged at the offices described
below.
Payments on Preferred Securities represented by a Global Preferred Security
will be made to DTC, as the depository for the Preferred Securities. In the
event Preferred Securities are issued in certificated form, the Liquidation
Amount and Distributions will be payable, the transfer of the Preferred
Securities will be registrable, and Preferred Securities will be exchangeable
for Preferred Securities of other denominations of a like aggregate Liquidation
Amount, at the corporate office of the Property Trustee, or at the offices of
any paying agent or transfer agent appointed by the Company, provided that
payment of any Distribution may be made by check mailed to the address of the
persons entitled thereto or by wire transfer.
Upon the issuance of a Global Preferred Security, and the deposit of such
Global Preferred Security with or on behalf of DTC, DTC for such Global
Preferred Security or its nominee will credit, on its book-entry registration
and transfer system, the respective aggregate Liquidation Amounts of the
individual Preferred Securities represented by such Global Preferred Securities
to the accounts of Participants. Such accounts shall be designated by the
dealers, underwriters or agents with respect to such Preferred Securities.
Ownership of beneficial interests in a Global Preferred Security will be limited
to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Preferred Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by DTC or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to interests of
persons who hold through Participants). The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definite form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Preferred Security.
So long as DTC for a Global Preferred Security, or its nominee, is the
registered owner of such Global Preferred Security, DTC or such nominee, as the
case may be, will be considered the sole owner or holder of the Preferred
Securities represented by such Global Preferred Security for all purposes under
the Indenture governing such Preferred Securities. Except as provided below,
owners of beneficial interests in a Global Preferred Security will not be
entitled to have any of the individual Preferred Securities represented by such
Global Preferred Security registered in their names, will not receive or be
entitled to receive physical delivery of any such Preferred Securities in
definitive form and will not be considered the owners or holders thereof under
the Indenture.
Payments of principal of and interest on individual Preferred Securities
represented by a Global Preferred Security registered in the name of DTC or its
nominee will be made to DTC or its nominee, as the case may be, as the
registered owner of the Global Preferred Security representing such Preferred
Securities. None of the Company, the Property Trustee, any Paying Agent, or the
Securities Registrar for such Preferred Securities will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial
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ownership interests of the Global Preferred Security representing such Preferred
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that DTC or its nominee, upon receipt of any payment of
Liquidation Amount, Redemption Price, premium or Distributions in respect of a
permanent Global Preferred Security representing any of such Preferred
Securities, immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interest in the aggregate
Liquidation Amount of such Global Preferred Security for such Preferred
Securities as shown on the records of DTC or its nominee. The Company also
expects that payments by Participants to owners of beneficial interests in such
Global Preferred Security held through such Participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name." Such payments will be the responsibility of such Participants.
If DTC is at any time unwilling, unable or ineligible to continue as
depository and a successor depository is not appointed within 90 days, the Trust
will issue individual Preferred Securities in exchange for the Global Preferred
Security. In addition, the Trust may at any time and in its sole discretion
determine not to have any Preferred Securities represented by one or more Global
Preferred Securities and, in such event, will issue individual Preferred
Securities in exchange for the Global Preferred Security or Securities
representing such Preferred Securities. Further, if the Trust so specifies with
respect to the Preferred Securities, an owner of a beneficial interest in a
Global Preferred Security representing Preferred Securities may, on terms
acceptable to the Trust, the Property Trustee and DTC for such Global Preferred
Security, receive individual Preferred Securities in exchange for such
beneficial interests. In any such instance, an owner of a beneficial interest in
a Global Preferred Security will be entitled to physical delivery of individual
Preferred Securities represented by such Global Preferred Security equal in
principal amount to such beneficial interest and to have such Preferred
Securities registered in its name. Individual Preferred Securities so issued
will be issued in denominations of $25 and integral multiplies thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities will be made to DTC, which
will credit the relevant accounts at DTC on the applicable Distribution Dates
or, if the Preferred Securities are not held by DTC, payments in respect of the
Preferred Securities will be made by check mailed to the address of the holder
entitled thereto as such address will appear on the register of holders of the
Preferred Securities. The paying agent for the Preferred Securities will
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 for the Preferred Securities may resign as paying agent upon 30
days' written notice to the Property Trustee and the Company. In the event that
the Property Trustee no longer is the paying agent for the Preferred Securities,
the Administrative Trustees will appoint a successor (which must be a bank or
trust company acceptable to the Administrative Trustees and the Company) to act
as paying agent.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as the registrar and the transfer agent for
the Preferred Securities. Registration of transfers of Preferred 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 Preferred Securities after such Preferred Securities
have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than upon the occurrence and during the
continuance of an Event of Default, undertakes to perform only such duties as
are specifically set forth in the Trust Agreement and, upon the occurrence and
during the continuance of an Event of Default, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Property Trustee
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is under no obligation to exercise any of the powers vested in it by the Trust
Agreement at the request of any holder of Preferred 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 Trust Agreement or is unsure of the
application of any provision of the Trust Agreement, and the matter is not one
on which holders of Preferred Securities are entitled under the Trust Agreement
to vote, then the Property Trustee will take such action as is directed by the
Company and if not so directed, will 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 Subordinated
Debentures will be treated as indebtedness of the Company for United States
federal income tax purposes. The Company and the Administrative Trustees are
authorized, in this connection, to take any action, not inconsistent with
applicable law, the certificate of trust of the Trust or the Trust Agreement,
that the Company and the Administrative Trustees determine in their discretion
to be necessary or desirable for such purposes.
Holders of the Preferred Securities have no preemptive or similar rights.
The Trust Agreement and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
DESCRIPTION OF THE SUBORDINATED DEBENTURES
Concurrently with the issuance of the Preferred Securities, the Trust will
invest the proceeds thereof, together with the consideration paid by the Company
for the Common Securities, in the Subordinated Debentures issued by the Company.
The Subordinated Debentures will be issued as unsecured debt under the
Indenture, to be dated as of July 20, 1998 (the "Indenture"), between the
Company and State Street Bank and Trust Company, as trustee (the "Debenture
Trustee"). The Indenture will be qualified as an indenture under the Trust
Indenture Act. The following summary of the material terms and provisions of the
Subordinated Debentures and the Indenture does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the Indenture and
to the Trust Indenture Act. Wherever particular defined terms of the Indenture
are referred to, but not defined herein, such defined terms are incorporated
herein by reference. The form of the Indenture has been filed as an exhibit to
the Registration Statement of which this Prospectus forms a part.
GENERAL
The Subordinated Debentures will be limited in aggregate principal amount
to approximately $36,082,500 (or $41,495,000 if the over-allotment option
described under the heading "Underwriting" is exercised by the Underwriters),
such amount being the sum of the aggregate stated Liquidation Amount of the
Trust Securities. The Subordinated Debentures will bear interest at the annual
rate of 8.25% of the principal amount thereof, payable quarterly in arrears on
the last day of January, April, July and October of each year (each, an
"Interest Payment Date") beginning October 31, 1998, to the Person (as defined
in the Indenture) in whose name each Subordinated Debenture is registered,
subject to certain exceptions, at the close of business on the fifteenth day of
the month in which the Interest Payment Date occurs. It is anticipated that,
until the liquidation of the Trust, the Subordinated Debentures will be held in
the name of the Property Trustee in trust for the benefit of the holders of the
Preferred 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. In the event
that any date on which interest is payable on the Subordinated Debentures is not
a
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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 8.25% thereof, compounded quarterly. The term "interest," as used
herein, includes quarterly interest payments, interest on quarterly interest
payments not paid on the applicable Interest Payment Date and Additional
Interest, as applicable.
The Subordinated Debentures will mature on July 31, 2028 (such date, as it
may be shortened as hereinafter described, the "Stated Maturity"). Such date may
be shortened at any time by the Company to any date not earlier than July 31,
2003, 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. In the event that the Company elects to shorten the Stated
Maturity of the Subordinated Debentures, it will give notice thereof to the
Debenture Trustee, the Trust and to the holders of the Subordinated Debentures
no more than 180 days and no less than 90 days prior to the effectiveness
thereof. The Company will not have the right to purchase the Subordinated
Debentures, in whole or in part, from the Trust until after July 31, 2003,
except if a Tax Event, Capital Treatment Event or an Investment Company Event
has occurred and is continuing.
The Subordinated Debentures will be unsecured and will rank junior and be
subordinate in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company. Because the Company is a holding
company, the right of the Company to participate in any distribution of assets
of the Bank, upon the Bank's liquidation or reorganization or otherwise (and
thus the ability of holders of the Subordinated Debentures to benefit indirectly
from such distribution), is subject to the prior claim of creditors of the Bank,
except to the extent that the Company may itself be recognized as a creditor of
the Bank. The Subordinated Debentures will, therefore, be effectively
subordinated to all existing and future liabilities of the Bank, and holders of
Subordinated Debentures should look only to the assets of the Company for
payments on the Subordinated Debentures.
The Indenture does not limit the incurrence or issuance of other secured or
unsecured debt of the Company, including Senior Debt, Subordinated Debt and
Additional Senior Obligations, whether under the Indenture or any existing
indenture or other indenture that the Company may enter into in the future, or
otherwise. See "--Subordination." The Indenture does not contain provisions that
afford holders of the Subordinated Debentures protection in the event of a
highly leveraged transaction or other similar transaction involving the Company
that may adversely affect such holders.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company has the right under the Indenture at any time during the term
of the Subordinated Debentures, so long as no Debenture Event of Default has
occurred and is continuing, to defer the payment of interest at any time, or
from time to time (each, an "Extension Period"). The right to defer the payment
of interest on the Subordinated Debentures is limited, however, to a period, in
each instance, not exceeding 20 consecutive quarters and no Extension Period may
extend beyond the Stated Maturity of the Subordinated Debentures. At the end of
each Extension Period, the Company must pay all interest then accrued and unpaid
(together with interest thereon at the annual rate of 8.25%, compounded
quarterly, to the extent permitted by applicable law). During an Extension
Period, interest will continue to accrue and holders of Subordinated Debentures
(or the holders of Preferred Securities if such securities are then outstanding)
will be required to accrue and recognize income for United States federal income
tax purposes. See "Certain Federal Income Tax Consequences--Potential Extension
of Interest Payment Period and Original Issue 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; (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities
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of the Company that rank pari passu with or junior in interest to the
Subordinated Debentures; (iii) make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any subsidiary of the Company
if such guarantee ranks pari passu with or junior in interest to the
Subordinated Debentures; or (iv) redeem, purchase or acquire less than all of
the Subordinated Debentures or any of the Preferred Securities (except that the
Company may make: (a) dividends or distributions payable in common stock of the
Company; (b) any declaration of a dividend in connection with the implementation
of a stockholder rights plan, any issuance under any such plan, or the
repurchase or redemption of any such rights pursuant thereto; (c) payments under
the Guarantee; and (d) purchases of common stock of the Company in connection
with the distribution or sale of shares of Company common stock pursuant to the
benefit plans of the Company and any subsidiary for its directors, officers or
employees). Prior to the termination of any such Extension Period, the Company
may further defer the payment of interest, provided that no Extension Period may
exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Subordinated Debentures. 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 will be due and payable during an Extension Period, except at the end
thereof. The Company has no present intention of exercising its rights to defer
payments of interest on the Subordinated Debentures. The Company must give the
Property Trustee, the Administrative Trustees and the Debenture Trustee notice
of its election of such Extension Period at least two Business Days prior to the
earlier of (i) the next succeeding date on which Distributions on the Trust
Securities would have been payable except for the election to begin such
Extension Period, or (ii) the date the Trust is required to give notice of the
record date, or the date such Distributions are payable, to The Nasdaq Stock
Market's National Market (or other applicable self-regulatory organization) or
to holders of the Preferred Securities, but in any event at least one Business
Day before such record date. Subject to the foregoing, there is no limitation on
the number of times that the Company may elect to begin an Extension Period.
ADDITIONAL SUMS
If the Trust or the Property Trustee is required to pay any additional
taxes, duties or other governmental charges as a result of the occurrence of a
Tax Event, the Company will pay as additional amounts (referred to herein as
"Additional Interest") on the Subordinated Debentures such additional amounts as
may be required so that the net amounts received and retained by the Trust after
paying any such additional taxes, duties or other governmental charges will not
be less than the amounts the Trust would have received had such additional
taxes, duties or other governmental charges not been imposed.
REDEMPTION OR EXCHANGE
The Company will have the right to redeem the Subordinated Debentures prior
to maturity (i) on or after July 31, 2003, in whole at any time or in part from
time to time, or (ii) at any time in whole (but not in part), within 90 days
following the occurrence of a Tax Event, a Capital Treatment Event or an
Investment Company Event, in each case at a redemption price equal to the
accrued and unpaid interest on the Subordinated Debentures so redeemed to the
date fixed for redemption, plus 100% of the principal amount thereof. Any such
redemption prior to the Stated Maturity will be subject to prior approval of the
Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve.
"Tax Event" means the receipt by the Trust of an opinion of 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 which
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that: (i) interest payable by the Company on the 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
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purposes; (ii) the Trust is, or will be within 90 days after the date of such
opinion of counsel, subject to United States federal income tax with respect to
income received or accrued on the Subordinated Debentures; or (iii) the Trust
is, or will be within 90 days after the date of such opinion of counsel, subject
to more than a de minimis amount of other taxes, duties, assessments or other
governmental charges. The Company must request and receive an opinion with
regard to such matters within a reasonable period of time after it becomes aware
of the possible occurrence of any of the events described in clauses (i) through
(iii) above.
"Capital Treatment Event" means the receipt by the Trust of an opinion of
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 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 proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk of impairment of the Company's ability to treat the aggregate
Liquidation Amount of the Preferred Securities (or any substantial portion
thereof) as "Tier 1 Capital" (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Company, provided, however, that the inability of the Company
to treat all or any portion of the Liquidation Amount of the Preferred
Securities as Tier 1 Capital shall not constitute the basis of a Capital
Treatment Event if such inability results from the Company having cumulative
preferred capital in excess of the amount which may qualify for treatment as
Tier 1 Capital under applicable capital adequacy guidelines of the Federal
Reserve.
"Investment Company Event" means the receipt by the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change becomes effective on or after the date of original
issuance of the Preferred Securities.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Subordinated Debentures to
be redeemed at its registered address. Unless the Company defaults in payment of
the redemption price for the Subordinated Debentures, on and after the
redemption date interest ceases to accrue on such Subordinated Debentures or
portions thereof called for redemption.
The Subordinated Debentures will not be subject to any sinking fund.
DISTRIBUTION UPON LIQUIDATION
As described under "Description of the Preferred Securities--Liquidation
Distribution Upon Termination," under certain circumstances involving the
termination of the Trust, the Subordinated Debentures may be distributed to the
holders of the Preferred Securities in liquidation of the Trust after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law. Any such distribution will be subject to receipt of prior approval by the
Federal Reserve, if then required under applicable policies or guidelines of the
Federal Reserve. If the Subordinated Debentures are distributed to the holders
of Preferred Securities upon the liquidation of the Trust, the Company will use
its best efforts to list the Subordinated Debentures on The Nasdaq Stock
Market's National Market or such stock exchanges, if any, on which the Preferred
Securities are then listed. There can be no assurance as to the market price of
any Subordinated Debentures that may be distributed to the holders of Preferred
Securities.
RESTRICTIONS ON CERTAIN PAYMENTS
If at any time: (i) there has occurred a Debenture Event of Default; (ii)
the Company is in default with respect to its obligations under the Guarantee;
or (iii) the Company has given notice of its election of an Extension Period as
provided in the Indenture with respect to the Subordinated Debentures and has
not rescinded such notice,
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or such Extension Period, or any extension thereof, is continuing, the Company
will not: (a) 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; (b) make any payment of principal, interest or premium,
if any, on or repay or repurchase or redeem any debt securities of the Company
that rank pari passu with or junior in interest to the Subordinated Debentures;
(c) make any guarantee payments with respect to any guarantee by the Company of
the debt securities of any subsidiary of the Company if such guarantee ranks
pari passu or junior in interest to the Subordinated Debentures (other than
payments under the Guarantee); or (d) redeem, purchase or acquire less than all
of the Subordinated Debentures or any of the Preferred Securities, except that
during an Extension Period the Company may make: (1) dividends or distributions
payable in common stock of the Company; (2) any declaration of a dividend in
connection with the implementation of a stockholder rights plan, any issuance
under any such plan, or the repurchase or redemption of any such rights pursuant
thereto; and (3) purchases of common stock of the Company in connection with the
distribution or sale of shares of Company common stock pursuant to the benefit
plans of the Company and any subsidiary for its directors, officers or
employees.
SUBORDINATION
The Indenture provides that the Subordinated Debentures issued thereunder
are subordinated and junior in right of payment to all Senior Debt, Subordinated
Debt and Additional Senior Obligations of the Company. 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 proceedings of the Company, the
holders of Senior Debt, Subordinated Debt and Additional Senior Obligations of
the Company will first be entitled to receive payment in full of principal of
(and premium, if any) and interest, if any, on such Senior Debt, Subordinated
Debt and Additional Senior Obligations of the Company before the holders of
Subordinated Debentures will be entitled to receive or retain any payment in
respect of the principal of or interest on the Subordinated Debentures.
In the event of the acceleration of the maturity of any Subordinated
Debentures, the holders of all Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company outstanding at the time of such acceleration
will first be entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders of the
Subordinated Debentures will be entitled to receive or retain any payment in
respect of the principal of or interest on the Subordinated Debentures.
No payments on account of principal or interest in respect of the
Subordinated Debentures may be made if there has occurred and is continuing a
default in any payment with respect to Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company or an event of default with respect
to any Senior Debt, Subordinated Debt or Additional Senior Obligations of the
Company resulting in the acceleration of the maturity thereof, or if any
judicial proceeding is pending with respect to any such default.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent: (i) every
obligation of such person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) and every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
"Senior Debt" means, with respect to the Company, the principal of (and
premium, if any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to
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the Company whether or not such claim for post-petition interest is allowed in
such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Subordinated
Debentures or to other Debt which is pari passu with, or subordinated to, the
Subordinated Debentures; provided, however, that Senior Debt will not be deemed
to include: (i) any Debt of the Company which when incurred and without respect
to any election under section 1111(b) of the United States Bankruptcy Code of
1978, as amended, was without recourse to the Company; (ii) any Debt of the
Company to any of its subsidiaries; (iii) any Debt to any employee of the
Company; (iv) any Debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course of business to the
extent that payments made to the holders of such Debt by the holders of the
Subordinated Debentures as a result of the subordination provisions of the
Indenture would be greater than they otherwise would have been as a result of
any obligation of such holders to pay amounts over to the obligees on such trade
accounts payable or accrued liabilities arising in the ordinary course of
business as a result of subordination provisions to which such Debt is subject;
and (v) Debt which constitutes Subordinated Debt.
"Subordinated Debt" means, with respect to the Company, the principal of
(and premium, if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating to
the Company whether or not such claim for post-petition interest is allowed in
such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, which is by its terms expressly provided to be
junior and subordinate to other Debt of the Company (other than the Subordinated
Debentures).
"Additional Senior Obligations" means, with respect to the Company, all
indebtedness, whether incurred on or prior to the date of the Indenture or
thereafter incurred, for claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements; provided, however, that Additional Senior Obligations do not
include claims in respect of Senior Debt or Subordinated Debt or obligations
which, by their terms, are expressly stated to be not superior in right of
payment to the Subordinated Debentures or to rank pari passu in right of payment
with the Subordinated Debentures. "Claim," as used herein, has the meaning
assigned thereto in Section 101(4) of the United States Bankruptcy Code of 1978,
as amended.
The Indenture places no limitation on the amount of additional Senior Debt,
Subordinated Debt or Additional Senior Obligations that may be incurred by the
Company. The Company expects from time to time to incur additional indebtedness
constituting Senior Debt, Subordinated Debt and Additional Senior Obligations.
At July 15, 1998, the Company had no outstanding Senior Debt, Subordinated Debt
or Additional Senior Obligations. Because the Company is a holding company, the
Subordinated Debentures are effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, including obligations to depositors
of the Subsidiary Banks.
PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on the Subordinated Debentures
will be made at the office of the Company's paying agent in New York, New York,
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 appears in the register of holders of the Subordinated Debentures; or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the register of holders of the Subordinated Debentures, provided
that proper transfer instructions have been received by the regular record date.
Payment of any interest on Subordinated Debentures will be made to the Person in
whose name such Subordinated Debenture is registered at the close of business on
the regular record date for such interest, except in the case of defaulted
interest. The Company may at any time designate additional paying agents for the
Subordinated Debentures or rescind the designation of any paying agent for the
Subordinated Debentures. In the event that the Company fails to maintain a
paying agent in New York, New York, Subordinated Debentures may be presented for
payment of principal and interest at the Corporate Trust Office of the Debenture
Trustee in Boston, Massachusetts.
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Any moneys deposited with the Debenture Trustee or any paying agent for the
Subordinated Debentures, or then held by the Company in trust, for the payment
of the principal of or interest on the Subordinated Debentures and remaining
unclaimed for two years after such principal or interest has become due and
payable will be repaid to the Company on May 31 of each year or (if then held in
trust by the Company) will be discharged from such trust and the holder of such
Subordinated Debenture will thereafter look, as a general unsecured creditor,
only to the Company for payment thereof.
REGISTRAR AND TRANSFER AGENT
The Debenture Trustee will act as the registrar and the transfer agent for
the Subordinated Debentures. Subordinated Debentures may be presented for
registration of transfer (with the form of transfer endorsed thereon, or a
satisfactory written instrument of transfer, duly executed), in New York, New
York or at the office of the registrar in Boston, Massachusetts. The Company may
at any time rescind the designation of any such transfer agent or approve a
change in the location through which any such transfer agent acts; provided that
the Company maintains a transfer agent in New York, New York. The Company may at
any time designate additional transfer agents with respect to the Subordinated
Debentures. In the event of any redemption, neither the Company nor the
Debenture Trustee will be required to (i) issue, register the transfer of or
exchange Subordinated Debentures during a period beginning at the opening of
business 15 days before the day of selection for redemption of Subordinated
Debentures and ending at the close of business on the day of mailing of the
relevant notice of redemption, or (ii) transfer or exchange any Subordinated
Debentures so selected for redemption, except, in the case of any Subordinated
Debentures being redeemed in part, any portion thereof not to be redeemed.
In the event that the Subordinated Debentures are distributed to Holders of
the Preferred Securities in liquidation of the Trust, the Subordinated
Debentures will initially be represented by one or more fully registered global
certificates representing the full aggregate amount of the Subordinated
Debentures, and the Subordinated Debentures will be transferable, and payments
of interest on and principal of the Subordinated Debentures will be effected in
substantially the same manner as with respect to the Preferred Securities. The
Subordinated Debentures would remain subject to the book-entry system until such
time as use of the book-entry system is discontinued as set forth herein.
MODIFICATION OF INDENTURE
The Company and the Debenture Trustee may, from time to time without the
consent of the holders of the Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies, and qualifying, or maintaining
the qualification of, the Indenture under the Trust Indenture Act. The Company
and the Indenture Trustee may also amend, waive or supplement the Indenture
relating to the Subordinated Debentures, without the consent of holders of the
Preferred Securities or Subordinated Debentures, to provide for the book-entry
transfer of the Subordinated Debentures. The Indenture contains provisions
permitting the Company and the Debenture Trustee, with the consent of the
holders of not less than a majority in principal amount of the outstanding
Subordinated Debentures, to modify the Indenture; provided, that no such
modification may, without the consent of the holder of each outstanding
Subordinated Debenture affected by such proposed modification: (i) extend the
fixed maturity of the Subordinated Debentures, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon;
or (ii) reduce the percentage of principal amount of Subordinated Debentures,
the holders of which are required to consent to any such modification of the
Indenture; and provided further that so long as any of the Preferred Securities
remain outstanding, no such modification may be made that requires the consent
of the holders of the Subordinated Debentures, and no termination of the
Indenture may occur, and no waiver of any Debenture Event of Default may be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount of the Preferred Securities and that if the
consent of the holder of each Subordinated Debenture is required, such
modification will not be effective until each holder of Trust Securities has
consented thereto.
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DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Subordinated Debentures that has occurred and is
continuing constitutes an event of default (each, a "Debenture Event of
Default") with respect to the Subordinated Debentures:
(i) failure for 30 days to pay any interest on the Subordinated 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 on the Subordinated Debentures when due
whether at maturity, upon redemption by declaration 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 the Subordinated Debentures; or
(iv) certain events of bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of the
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 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 Subordinated
Debentures may annul such declaration and waive the default if the default
(other than the non-payment of the principal of the 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.
Should the holders of the Subordinated Debentures fail to annul such declaration
and waive such default, the holders of a majority in aggregate Liquidation
Amount of the Preferred Securities will have such right.
The Company is required to file annually with the Debenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Indenture.
If a Debenture Event of Default has occurred and is continuing, the
Property Trustee will have the right to declare the principal of and the
interest on such Subordinated Debentures, and any other amounts payable under
the Indenture, to be forthwith due and payable and to enforce its other rights
as a creditor with respect to such Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF THE PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest on or
principal of the Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Preferred Securities may institute
a legal proceeding directly against the Company for enforcement of payment to
such holder of the principal of or interest on such Subordinated Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder (a "Direct Action"). In connection with such
Direct Action, the Company will have a right of set-off under the Indenture to
the extent of any payment made by the Company to such holder of Preferred
Securities in the Direct Action. 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 Preferred Securities. If the right to bring
a Direct Action is removed, the Trust may become subject to the reporting
obligations under the Exchange Act. The Company has the right under the
Indenture to set-off any payment made to such holder of Preferred Securities by
the Company in connection with a Direct Action.
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The holders of the Preferred 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 Subordinated Debentures unless there has been an
Event of Default under the Trust Agreement. See "Description of the Preferred
Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Company may not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to any
Person, and no Person may consolidate with or merge into the Company or sell,
convey, transfer or otherwise dispose of its properties and assets substantially
as an entirety to the Company, unless: (i) in the event 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 by supplemental indenture
the Company's obligations on the Subordinated Debentures issued under the
Indenture; (ii) immediately after giving 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, has occurred and is continuing; and (iii) certain
other conditions as prescribed in the Indenture are met.
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect (except as to the
Company's obligations to pay certain sums due pursuant to the Indenture and to
provide certain officers' certificates and opinions of counsel described
therein) and the Company will be deemed to have satisfied and discharged the
Indenture when, among other things, all 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 their Stated Maturity within one
year, or are to be called for redemption 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 Subordinated Debentures not previously delivered to the
Debenture Trustee for cancellation, for the principal and interest to the date
of the deposit or to the Stated Maturity or redemption date, as the case may be.
GOVERNING LAW
The Indenture and the Subordinated Debentures will be governed by and
construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has and 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 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.
MISCELLANEOUS
The Company has agreed, pursuant to the Indenture, for so long as Trust
Securities remain outstanding: (i) to maintain directly or indirectly 100%
ownership of the Common Securities of the Trust (provided that certain
successors which are permitted pursuant to the Indenture may succeed to the
Company's ownership of the Common Securities); (ii) not to voluntarily
terminate, wind up or liquidate the Trust, except upon prior approval of the
Federal Reserve, if then so required under applicable capital guidelines or
policies of the Federal Reserve, and (a) in
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connection with a distribution of Subordinated Debentures to the holders of the
Preferred Securities in liquidation of the Trust, or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the Trust
Agreement; and (iii) to use its reasonable efforts, consistent with the terms
and provisions of the Trust Agreement, to cause the Trust to remain classified
as a grantor trust and not as an association taxable as a corporation for United
States federal income tax purposes.
BOOK-ENTRY ISSUANCE
The Depository Trust Company ("DTC") will act as securities depository for
all of the Preferred Securities. The Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede & Co. (DTC's
nominee). One or more fully-registered global certificates will be issued for
the Preferred Securities of the Trust, representing in the aggregate the total
number of the Trust's Preferred Securities, and will be deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. "Direct Participants" include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. DTC is owned by a number of its Direct Participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with Direct
Participants, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Preferred Securities.
Transfers of ownership interests in the Preferred Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the event that use
of the book-entry system for the Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such Preferred Securities are credited, which may or may not
be the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners will
be governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Preferred Securities. If less than all of the Preferred Securities are being
redeemed, DTC's current practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
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Although voting with respect to the Preferred Securities is limited to the
holders of record of the Preferred Securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Preferred Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the Trust as soon as possible after the
record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights
to those Direct Participants to whose accounts such Preferred Securities are
credited on the record date (identified in a listing attached to the Omnibus
Proxy).
Distribution payments on the Preferred Securities will be made by the
Trustee to DTC. DTC's practice is to credit Direct Participants' accounts on the
relevant payment date in accordance with their respective holdings shown on
DTC's records unless DTC has reason to believe that it will not receive payments
on such payment date. Payments by Participants to Beneficial Owners will be
governed by standing instructions and customary practices and will be the
responsibility of such Participant and not of DTC, the Trustee or the Trust
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of Distributions to DTC is the responsibility of the
Trustee, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursements of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to any of the Preferred Securities at any time by giving reasonable
notice to the Trustee and the Company. In the event that a successor securities
depository is not obtained, definitive Preferred Security certificates
representing such Preferred Securities are required to be printed and delivered.
The Company, at its option, may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor depository). After a Debenture
Event of Default, the holders of a majority in liquidation preference of
Preferred Securities may determine to discontinue the system of book-entry
transfers through DTC. In any such event, definitive certificates for such
Preferred Securities will be printed and delivered.
It is anticipated that if the Subordinated Debentures are distributed to
Holders of the Preferred Securities in liquidation of the Trust, the Indenture
will be amended to provide for book-entry issuance and transfer of the
Subordinated Debentures. In such event, the Subordinated Debentures will
initially be represented by one or more fully registered global certificates
representing the full aggregate amount of the Subordinated Debentures, and the
Subordinated Debentures will be transferable, and payments of interest on and
principal of the Subordinated Debentures will be effected in substantially the
same manner as with respect to the Preferred Securities. The Subordinated
Debentures would remain subject to the book-entry system until such time as use
of the book-entry system is discontinued as set forth herein.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Trust and the Company believe to be
accurate, but the Trust and the Company assume no responsibility for the
accuracy thereof. Neither the Trust nor the Company has any responsibility for
the performance by DTC or its Participants of their respective obligations as
described herein or under the rules and procedures governing their respective
operations.
DESCRIPTION OF THE GUARANTEE
The Preferred Securities Guarantee Agreement (the "Guarantee") will be
executed and delivered by the Company concurrently with the issuance of the
Preferred Securities, for the benefit of the holders of the Preferred
Securities. The Guarantee will be qualified as an indenture under the Trust
Indenture Act. The Guarantee Trustee will act as indenture trustee under the
Guarantee for purposes of complying with the provisions of the Trust Indenture
Act. The Guarantee Trustee, State Street Bank and Trust Company, will hold the
Guarantee for the benefit of the holders of the Preferred Securities. The
following summary of the material terms and 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 and the Trust Indenture
Act. Wherever particular defined terms of the Guarantee are referred to, but not
defined herein, such defined terms are incorporated herein by reference. The
form of the Guarantee has been filed as an exhibit to the Registration Statement
of which this Prospectus forms a part.
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GENERAL
The Company will, pursuant to the Guarantee, irrevocably agree to pay in
full on a subordinated basis, to the extent set forth therein, the Guarantee
Payments (as defined below) to the holders of the Preferred 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 Preferred Securities, to the extent not paid by or
on behalf of the Trust (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accrued and unpaid Distributions required to be paid on the
Preferred Securities, to the extent that the Trust has funds available therefor
at such time, (ii) the Redemption Price with respect to any Preferred Securities
called for redemption, to the extent that the Trust has funds available therefor
at such time, and (iii) upon a voluntary or involuntary dissolution, winding up
or liquidation of the Trust (other than in connection with the distribution of
Subordinated Debentures to the holders of Preferred Securities or a redemption
of all of the Preferred Securities), the lesser of (a) the amount of the
Liquidation Distribution, to the extent the Trust has funds available therefor
at such time, and (b) the amount of assets of the Trust remaining available for
distribution to holders of Preferred Securities in liquidation of the Trust. The
obligation of the Company to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of the Preferred
Securities or by causing the Trust to pay such amounts to such holders.
The Guarantee will not apply to any payment of Distributions except to the
extent the Trust has funds available therefor. If the Company does not make
interest payments on the Subordinated Debentures held by the Trust, the Trust
will not pay Distributions on the Preferred Securities and will not have funds
available therefor.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company in the same
manner as the Subordinated Debentures. The Guarantee does not place a limitation
on the amount of additional Senior Debt, Subordinated Debt or Additional Senior
Obligations that may be incurred by the Company. The Company expects from time
to time to incur additional indebtedness constituting Senior Debt, Subordinated
Debt and Additional Senior Obligations.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, 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). 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 of the Subordinated Debentures to the
holders of the Preferred Securities. Because the Company is a holding company,
the right of the Company to participate in any distribution of assets of the
Bank upon the Bank's liquidation or reorganization or otherwise is subject to
the prior claims of creditors of the Bank, except to the extent the Company may
itself be recognized as a creditor of the Bank. The Company's obligations under
the Guarantee, therefore, 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.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Preferred Securities (in which case no vote will be
required), the Guarantee may not be amended without the prior approval of the
holders of not less than a majority of the aggregate Liquidation Amount of the
outstanding Preferred Securities. See "Description of the Preferred
Securities--Voting Rights; Amendment of Trust Agreement." All guarantees and
agreements contained in the Guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will inure to the
benefit of the holders of the Preferred Securities then outstanding.
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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 not less than a majority in aggregate Liquidation Amount of the
Preferred 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 or power
conferred upon the Guarantee Trustee under the Guarantee.
Any holder of Preferred 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.
The Company, as guarantor, is 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.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Company in performance of the Guarantee, undertakes to perform
only such duties as are specifically set forth in the Guarantee and, after
default with respect to the Guarantee, must exercise the same degree of care and
skill as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to such provisions, 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 any Preferred Securities, unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon:
(a) full payment of the Redemption Price of the Preferred Securities; (b) full
payment of the amounts payable upon liquidation of the Trust; or (c)
distribution of the Subordinated Debentures to the holders of the Preferred
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 Preferred Securities must
restore payment of any sums paid under such Preferred Securities or the
Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
EXPENSE AGREEMENT
The Company will, pursuant to the Agreement as to Expenses and Liabilities
entered into by it under the Trust Agreement (the "Expense Agreement"),
irrevocably and unconditionally guarantee to each person or entity to whom the
Trust becomes indebted or liable, the full payment of any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to the
holders of the Preferred Securities or other similar interests in the Trust of
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. Third party creditors of
the Trust may proceed directly against the Company under the Expense Agreement,
regardless of whether such creditors had notice of the Expense Agreement.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE SUBORDINATED DEBENTURES
AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent the Trust has funds 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." The Company and the Trust
believe that, taken together, the obligations of the Company under the
Subordinated Debentures, the Indenture, the Trust Agreement, the Expense
Agreement, and the Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee, on a subordinated basis, of payment of Distributions
and other amounts due on the Preferred 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 obligations of the Trust under the Preferred Securities. If and to the
extent that the Company does not make payments on the Subordinated Debentures,
the Trust will not pay Distributions or other amounts due on the Preferred
Securities. The Guarantee does not cover payment of Distributions when the Trust
does not have sufficient funds to pay such Distributions. In such event, the
remedy of a holder of Preferred Securities is to institute a legal proceeding
directly against the Company for enforcement of payment of such Distributions to
such holder. The obligations of the Company under the Guarantee are subordinate
and junior in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Subordinated Debentures, such payments will be sufficient to cover Distributions
and other payments due on the Preferred Securities, primarily because: (i) the
aggregate principal amount of the Subordinated Debentures will be equal to the
sum of the aggregate stated Liquidation Amount of the Trust Securities; (ii) the
interest rate and interest and other payment dates on the Subordinated
Debentures will match the Distribution rate and Distribution and other payment
dates for the Preferred Securities; (iii) the Company will pay for all and any
costs, expenses and liabilities of the Trust (except the obligations of the
Trust to holders of the Preferred Securities); and (iv) the Trust Agreement
further provides that the Trust will not engage in any activity that is not
consistent with the limited purposes of the Trust.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred 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. A default or event of default under any Senior Debt,
Subordinated Debt or Additional Senior Obligations of the Company would not
constitute a default or Event of Default. In the event, however, of payment
defaults under, or acceleration of, Senior Debt, Subordinated Debt or Additional
Senior Obligations of the Company, the subordination provisions of the Indenture
provide that no payments may be made in respect of the Subordinated Debentures
until such Senior Debt, Subordinated Debt or Additional Senior Obligations has
been paid in full or any payment default thereunder has been cured or waived.
Failure to make required payments on the Subordinated Debentures would
constitute an Event of Default.
LIMITED PURPOSE OF THE TRUST
The Preferred Securities evidence a preferred undivided beneficial interest
in the assets of the Trust. The Trust exists for the exclusive purposes of: (i)
issuing the Trust Securities representing undivided beneficial interests in the
assets of the Trust; (ii) investing the gross proceeds of the Trust Securities
in the Subordinated Debentures issued by the Company; and (iii) engaging in only
those other activities necessary, advisable, or incidental thereto. A principal
difference between the rights of a holder of a Preferred Security and the rights
of a holder of a Subordinated Debenture is that a holder of a Subordinated
Debenture is entitled to receive from the Company the
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principal amount of and interest accrued on Subordinated Debentures held, while
a holder of Preferred Securities is entitled to receive Distributions from the
Trust (or from the Company under the Guarantee) if and to the extent the Trust
has funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
the Trust involving the liquidation of the Subordinated Debentures, the holders
of the Preferred Securities will be entitled to receive, out of assets held by
the Trust, the Liquidation Distribution in cash. See "Description of the
Preferred Securities--Liquidation Distribution Upon Termination." Upon any
voluntary or involuntary liquidation or bankruptcy of the Company, the Property
Trustee, as holder of the Subordinated Debentures, would be a subordinated
creditor of the Company, subordinated in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company (as set forth
in the Indenture), but entitled to receive payment in full of principal and
interest before any shareholders of the Company receive payments or
distributions. Since the Company is the guarantor under the Guarantee and has
agreed to pay for all costs, expenses and liabilities of the Trust (other than
the obligations of the Trust to the holders of its Preferred Securities), the
positions of a holder of the Preferred Securities and a holder of the
Subordinated Debentures relative to other creditors and to shareholders of the
Company in the event of liquidation or bankruptcy of the Company are expected to
be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following is a summary of the material United States federal income tax
considerations that may be relevant to the purchasers of Preferred Securities,
which has been passed upon by Kennedy, Baris & Lundy, L.L.P., counsel to the
Company and the Trust, insofar as it relates to matters of law and legal
conclusions. The conclusions expressed herein are based upon current provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), regulations
thereunder and current administrative rulings and court decisions, all of which
are subject to change at any time, with possible retroactive effect. Subsequent
changes may cause tax consequences to vary substantially from the consequences
described below. Furthermore, the authorities on which the following summary is
based are subject to various interpretations, and it is therefore possible that
the United States federal income tax treatment of the purchase, ownership, and
disposition of Preferred Securities may differ from the treatment described
below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Preferred
Securities. Moreover, the discussion generally focuses on holders of Preferred
Securities who are individual citizens or residents of the United States and who
acquire Preferred Securities on their original issue at their offering price and
hold Preferred Securities as capital assets. The discussion has only limited
application to dealers in securities, corporations, estates, trusts or
nonresident aliens and does not address all the tax consequences that may be
relevant to holders who may be subject to special tax treatment, such as, for
example, 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 Preferred Securities as a position in a
"straddle," as part of a "synthetic security" or "hedge," as part of a
"conversion transaction" or other integrated investment, or as other than a
capital asset.
The following 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 Preferred
Securities. Further, it does not include any description of any alternative
minimum tax consequences, or the tax laws of any state or local government or of
any foreign government, that may be applicable to the Preferred Securities.
Accordingly, each prospective investor should consult, and should rely
exclusively on, such investor's own tax advisors in analyzing the federal,
state, local and foreign tax consequences of the purchase, ownership or
disposition of Preferred Securities.
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CLASSIFICATION OF THE SUBORDINATED DEBENTURES
The Company intends to take the position that the Subordinated Debentures
will be classified for United States federal income tax purposes as indebtedness
of the Company under current law, and, by acceptance of a Preferred Security,
each holder covenants to treat the Subordinated Debentures as indebtedness and
the Preferred Securities as evidence of an indirect beneficial ownership
interest in the Subordinated Debentures. No assurance can be given, however,
that such position of the Company will not be challenged by the Internal Revenue
Service or, if challenged, that such a challenge will not be successful. The
remainder of this discussion assumes that the Subordinated Debentures will be
classified for United States federal income tax purposes as indebtedness of the
Company. See "Risk Factors--Redemption Upon Tax Event, Capital Treatment Event
or Investment Company Event."
CLASSIFICATION OF THE TRUST
Under current law and assuming full compliance with the terms of the Trust
Agreement and Indenture (and certain other documents described herein), 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. Accordingly,
for United States federal income tax purposes, each holder of Preferred
Securities generally will be treated as owning an undivided beneficial interest
in the Subordinated Debentures, and each holder will be required to include in
its gross income items of income realized with respect to its allocable share of
the Subordinated Debentures.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
Applicable Treasury regulations generally provide that stated interest on a
debt instrument is not "qualified stated interest" and, therefore, will give
rise to original issue discount ("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 Subordinated Debentures, to defer payments of interest by extending
interest payment periods for a period not exceeding 20 consecutive quarters.
Unless the likelihood of exercise of such right to defer is remote, the
Subordinated Debentures would be treated as issued with OID. A holder of a debt
instrument 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 its method of accounting. Under the Indenture, the Company may
not, subject to certain limited exceptions: (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; (ii) make any payment of
principal, interest or premium, if any, on, or repay, repurchase or redeem any
debt securities of the Company that rank pari passu with or junior in interest
to the Subordinated Debentures, or make any guarantee payments with respect to
any guarantee by the Company of any debt securities of any subsidiary of the
Company, if such guarantee ranks pari passu or junior in interest to the
Subordinated Debentures (other than payments on the Guarantee); or (iii) redeem,
purchase or acquire less than all of the Subordinated Debentures or any of the
Preferred Securities. See "Description of Subordinated Debentures--Option to
Extend Interest Payment Period." The Company currently believes that the adverse
impact that the imposition of such restrictions would have on the Company and
the value of its equity securities, makes the likelihood of its exercising its
right to defer payments of interest on the Subordinated Debentures remote.
Accordingly, the Company believes that the stated interest on the Subordinated
Debentures should be considered unconditionally payable for purposes of the Code
and that the Subordinated Debentures should not be considered as having been
issued with OID. If so, stated interest paid or payable prior to the exercise,
if any, by the Company of its right to defer payments, will be taxable to
holders as ordinary income, generally at the time it is received or accrued, in
accordance with each holder's regular method of accounting for federal income
tax purposes. There can be no assurance that the Internal Revenue Service will
agree with this position.
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If, notwithstanding the foregoing, the Company does exercise its right to
defer payments of interest on the Subordinated Debentures, the Subordinated
Debentures will be considered to be retired and reissued for their adjusted
issue price at such time, and the Subordinated Debentures thereafter will be
considered to have been issued with OID. In such case, all of the interest
payments thereafter payable will be treated as OID. If the payments are treated
as OID (either because the Company exercises the right to defer interest
payments or because the exercise of such right was not remote at the time of
issuance), holders must include that discount in income on an economic accrual
basis before the receipt of cash attributable to the interests, regardless of
their method of tax accounting. Any holder who disposes of Preferred Securities
prior to the record date for the payment of Distributions thereon, following
such Extension Period, will include OID in gross income but will not receive any
cash related thereto from the Trust. The amount of OID that would accrue in any
quarter will approximately equal the amount of the interest that accrues in that
quarter at the stated interest rate. In the event that the interest payment
period is extended, holders will accrue OID approximately equal to the amount of
the interest payment due at the end of the Extension Period on an economic
accrual basis over the length of the Extension Period.
Holders of Preferred Securities will not be entitled to a dividends
received deduction with respect to any income recognized with respect to the
Preferred Securities.
MARKET DISCOUNT AND ACQUISITION PREMIUM
Holders of Preferred Securities other than a holder who purchased the
Preferred Securities upon original issuance may be considered to have acquired
their undivided interests in the Subordinated Debentures with "market discount"
or "acquisition premium" as such phrases are defined for United States federal
income tax purposes. Such holders are advised to consult their tax advisors as
to the income tax consequences of the acquisition, ownership and disposition of
the Preferred Securities.
RECEIPT OF SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF THE TRUST
Under certain circumstances, as described under "Description of the
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination," the Subordinated Debentures may be distributed to holders of
Preferred Securities upon a liquidation of the Trust. Under current United
States federal income tax law, such a distribution would be treated as a
nontaxable event to each such holder and would result in such holder having an
aggregate tax basis in the Subordinated Debentures received in the liquidation
equal to such holder's aggregate tax basis in the Preferred Securities
immediately before the distribution. A holder's holding period in the
Subordinated Debentures so received in liquidation of the Trust would include
the period for which such holder held the Preferred Securities.
If, however, a Tax Event occurs which results in the Trust being treated as
an association taxable as a corporation, the distribution would likely
constitute a taxable event to holders of the Preferred Securities. Under certain
circumstances described herein, the Subordinated Debentures may be redeemed for
cash and the proceeds of such redemption distributed to holders in redemption of
their Preferred Securities. Under current law, such a redemption would, for
United States federal income tax purposes, constitute a taxable disposition of
the redeemed Preferred Securities, and a holder would recognize gain or loss as
if the holder sold such Preferred Securities for cash. See "Description of the
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination."
DISPOSITION OF PREFERRED SECURITIES
A holder that sells Preferred Securities will recognize gain or loss equal
to the difference between the amount realized on the sale of the Preferred
Securities (other than amounts attributable to accrued but unpaid interest which
has not yet been included in income, which will be treated as ordinary income)
and the holder's adjusted tax basis in such Preferred Securities. A holder's
adjusted tax basis in the Preferred Securities generally will be its initial
purchase price increased by OID (if any) previously includable in such holder's
gross income to the date of
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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 Preferred Securities to the date of disposition (other than
payments of qualified stated interest). Such gain or loss will generally be a
capital gain or loss if the Preferred Securities are held as a capital asset.
The Preferred Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the underlying
Subordinated Debentures. A holder that uses the accrual method of accounting
(and a cash method holder if the Subordinated Debentures are deemed to have been
issued with OID) that disposes of its Preferred Securities between record dates
for payments of distributions thereon will be required to include accrued but
unpaid interest on the Subordinated Debentures through the date of disposition
in income as ordinary income, and to add such amount to its adjusted tax basis
in its pro rata share of the underlying Subordinated Debentures deemed disposed
of. To the extent the selling price (which may not fully reflect the value of
accrued but unpaid interest) is less than the holder's adjusted tax basis (which
basis will include, in the form of OID, 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.
EFFECT OF PROPOSED CHANGES IN TAX LAWS
On February 6, 1997, President Clinton proposed certain tax law changes
that would, among other things, generally deny corporate issuers a deduction for
interest or OID in respect of certain debt obligations if such debt obligations
have a maximum term in excess of 15 years and are not shown as indebtedness on
the issuer's applicable consolidated balance sheet. The 1997 Proposed
Legislation was not included in the Taxpayer Relief Act of 1997 as enacted, and
was not included in President Clinton's 1999 budget proposal released in
February 1998. However, if legislation similar to the 1997 Proposed Legislation
is enacted in the future with retroactive effect, the Company would not be
entitled to an interest deduction with respect to the Subordinated Debentures.
There can be no assurance that legislation enacted after the date hereof will
not adversely affect, in the manner proposed in the 1997 Proposed Legislation or
otherwise, the ability of the Company to deduct the interest payable on the
Subordinated Debentures. Consequently, there can be no assurance that a Tax
Event will not occur. A Tax Event would permit the Company, upon approval of the
Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve, to cause a redemption of the Preferred
Securities before, as well as after, July 31, 2003. See "Description of the
Subordinated Debentures--Redemption or Exchange," "Description of the Preferred
Securities--Redemption or Exchange--Tax Event Redemption, Capital Treatment
Event Redemption or Investment Company Event Redemption" and "Risk
Factors--Redemption Upon Tax Event, Capital Treatment Event or Investment
Company Event."
BACKUP WITHHOLDING AND INFORMATION REPORTING
The amount of interest (or OID) accrued on the Preferred Securities held of
record by individual citizens or residents of the United States, or certain
trusts, estates, and partnerships, will be reported to the Internal Revenue
Service on Forms 1099, which forms should be mailed to such holders of Preferred
Securities by January 31 following each calendar year. Payments made on, and
proceeds from the sale of, the Preferred Securities may be subject to a "backup"
withholding tax (currently at 31%) unless the holder complies with certain
identification and other requirements. Any amounts withheld under the backup
withholding rules will be allowed as a credit against the holder's United States
federal income tax liability, provided the required information is provided to
the Internal Revenue Service.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON THE
PARTICULAR SITUATION OF A HOLDER OF PREFERRED SECURITIES. HOLDERS OF PREFERRED
SECURITIES SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE PREFERRED
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
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FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES
FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Employee benefit plans that are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
("Plans") generally may purchase Preferred Securities, subject to the investing
fiduciary's determination that the investment in Preferred Securities satisfies
ERISA's fiduciary standards and other requirements applicable to investments by
the Plan.
In any case, the Company and/or any of its affiliates may be considered a
"party in interest" (within the meaning of ERISA) or a "disqualified person"
(within the meaning of Section 4975 of the Code) with respect to certain Plans
(generally, Plans maintained or sponsored by, or contributed to by, any such
persons with respect to which the Company or an affiliate is a fiduciary, or
Plans for which the Company or an affiliate provides services). The acquisition
and ownership of Preferred Securities by a Plan (or by an individual retirement
arrangement or other Plans described in Section 4975(e)(1) of the Code) with
respect to which the Company or any of its affiliates is considered 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 Preferred
Securities are acquired pursuant to and in accordance with an applicable
exemption.
As a result, Plans with respect to which the Company or any of its
affiliates is a party in interest or a disqualified person should not acquire
Preferred Securities unless such Preferred Securities are acquired pursuant to
and in accordance with an applicable exemption. Any other Plans or other
entities whose assets include Plan assets subject to ERISA or Section 4975 of
the Code proposing to acquire Preferred Securities should consult with their own
counsel.
UNDERWRITING
The Underwriters named below (the "Underwriters"), have severally agreed,
subject to the terms and conditions set forth in the Underwriting Agreement, the
form of which is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part, to purchase from the Trust the number of Preferred
Securities set forth opposite their respective names below. The Underwriters
have agreed in the Underwriting Agreement, subject to the terms and conditions
set forth therein, to purchase all of the Preferred Securities offered hereby if
any of the Preferred Securities are purchased. In the event of a default by an
Underwriter, the Underwriting Agreement provides that, in certain circumstances,
purchase commitments of the nondefaulting Underwriters may be increased, or the
Underwriting Agreement may be terminated.
Number of Preferred
Underwriter Securities
- ---------------------------------------------- ---------------------
Sandler O'Neill & Partners, L.P. 700,000
Legg Mason Wood Walker, Incorporated 700,000
Total 1,400,000
The Underwriters have advised the Trust that they propose initially to
offer the Preferred Securities to the public at the public offering price set
forth on the cover page of this Prospectus, and to certain dealers at such price
less a concession not in excess of $0.50 per Preferred Security. The
Underwriters may allow, and such dealers may reallow, a discount not in excess
of $0.20 per Preferred Security to certain other dealers. After the initial
public offering, the public offering price, concession and discount may be
changed.
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In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debentures of the Company,
the Underwriting Agreement provides that the Company will pay, as compensation
to the Underwriters for arranging the investment therein of such proceeds,
$0.875 per Preferred Security (or $1,225,000 in the aggregate, or $1,408,750 in
the aggregate if the Underwriters' over-allotment option, described below, is
exercised in full), in immediately available funds. In addition to such
compensation, the Company has agreed to pay the Underwriters' expenses in
connection with this Offering, including legal expenses.
The Trust has granted the Underwriters an option to purchase up to an
additional 210,000 Preferred Securities at the initial public offering price.
Such option, which expires 30 days from the date of this Prospectus, may be
exercised solely to cover over-allotments. To the extent that the Underwriters
exercise their option to purchase additional Preferred Securities, the Trust
will issue and sell to the Company additional Common Securities in such
aggregate Liquidation Amount as is required for the Company to continue to hold
Common Securities in an aggregate Liquidation Amount equal to at least 3% of the
total capital of the Trust, and the Company will issue and sell to the Trust
Subordinated Debentures in an aggregate principal amount equal to the total
aggregate Liquidation Amount of the additional Preferred Securities being
purchased pursuant to the option and the additional Common Securities.
In connection with the offering of the Preferred Securities, the
Underwriters and any selling group members and their respective affiliates may
engage in transactions effected in accordance with Rule 104 of the Securities
and Exchange Commission's Regulation M that are intended to stabilize, maintain
or otherwise affect the market price of the Preferred Securities. Such
transactions may include over-allotment transactions in which the Underwriters
create a short position for their own account by selling more Preferred
Securities than they are committed to purchase from the Trust. In such case, to
cover all or part of the short position, the Underwriters may exercise the
over-allotment option described above or may purchase Preferred Securities in
the open market following completion of the initial offering of the Preferred
Securities.
The Underwriters may also engage in stabilizing transactions in which they
bid for and purchase Preferred Securities at a level above that which might
otherwise prevail in the open market, for the purpose of preventing or retarding
a decline in the market price of the Preferred Securities. The Underwriters also
may reclaim any selling concession allowed to an Underwriter or dealer if the
Underwriters repurchase securities distributed by that Underwriter or dealer.
Any of the foregoing transactions may result in the maintenance of a price for
the Preferred Securities at a level above that which might otherwise prevail in
the open market. Neither the Company nor any of the Underwriters make any
representation or prediction as to the direction or magnitude of any effect that
the transactions described above may have on the price of the Preferred
Securities. The Underwriters are not required to engage in the foregoing
transactions and, if commenced, such transactions may be discontinued without
notice.
During a period of 180 days from the date of this Prospectus, neither the
Trust nor the Company will, subject to certain exceptions, without the prior
written consent of the Underwriters, directly or indirectly, sell, offer to
sell, grant any option for sale of, or otherwise dispose of, any Preferred
Securities, any security convertible into or exchangeable into or exercisable
for Preferred Securities or Subordinated Debentures or any debt securities
substantially similar to the Subordinated Debentures or equity securities
substantially similar to the Preferred Securities (except for Subordinated
Debentures and the Preferred Securities offered hereby).
Because the National Association of Securities Dealers, Inc. (the "NASD")
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Rules of
Conduct.
Application has been made to have the Preferred Securities approved for
quotation on The Nasdaq Stock Market's National Market. The Underwriters have
advised the Trust that they presently intend to make a market in the Preferred
Securities after the commencement of trading on The Nasdaq Stock Market's
National Market, but no assurances can be made as to the liquidity of such
Preferred Securities or that an active and liquid trading market will develop
or, if developed, that it will continue. The offering price and distribution
rate have been determined
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by negotiations among representatives of the Company and the Underwriters, and
the offering price of the Preferred Securities may not be indicative of the
market price following the offering. The Underwriters will have no obligation to
make a market in the Preferred Securities, however, and may cease market-making
activities, if commenced, at any time.
The Trust and the Company have agreed to indemnify the Underwriters
against, or contribute to payments that the Underwriters may be required to make
in respect of, certain liabilities, including liabilities under the Securities
Act.
The Underwriters engage in transactions with, and, from time to time, have
performed services for, the Company and its subsidiaries in the ordinary course
of business.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the enforceability of the Trust Agreement and the formation of the
Trust will be passed upon by Richards, Layton & Finger, P.A., special Delaware
counsel to the Company and the Trust. Certain legal matters for the Company and
the Trust, including the validity of the Guarantee and the Subordinated
Debentures, will be passed upon for the Company and the Trust by Kennedy, Baris
& Lundy, L.L.P., Bethesda, Maryland, counsel to the Company and the Trust.
Certain legal matters will be passed upon for the Underwriters by Breyer &
Aguggia LLP, Washington, D.C. Kennedy, Baris & Lundy, L.L.P. and Breyer &
Aguggia LLP will rely on the opinion of Richards, Layton & Finger, P.A. as to
matters of Delaware law. Certain matters relating to United States federal
income tax considerations will be passed upon for the Company by Kennedy, Baris
& Lundy, L.L.P.
EXPERTS
The consolidated financial statements at December 31, 1997 and 1996 and for
each of the three years in the period ended December 31, 1997 incorporated by
reference in this Prospectus have been audited by Keller Bruner & Company,
L.L.C. independent auditors, as stated in its report, which is incorporated by
reference herein, and have been so incorporated in reliance upon the report of
such firm given its authority as an expert in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Securities
and Exchange Commission (the "Commission") are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
(3) The Company's Current Report on Form 8-K dated June 9, 1998;
(4) The Company's Current Report on Form 8-K dated June 23, 1998; and
(5) The Company's Current Report on Form 8-K dated July 14, 1998.
All reports filed by the Company with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Preferred Securities offered
hereby 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 a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that
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a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS WHICH ARE NOT SPECIFICALLY INCORPORATED BY REFERENCE
IN SUCH DOCUMENTS). WRITTEN REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO MARK
A. SEVERSON, SENIOR VICE PRESIDENT, FCNB CORP, 7200 FCNB COURT, FREDERICK,
MARYLAND 21703. TELEPHONE REQUESTS MAY BE DIRECTED TO (301) 662-2191.
AVAILABLE INFORMATION
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and the Trust with the Commission under the
Securities Act, with respect to the Preferred Securities and the Subordinated
Debentures. This Prospectus does not contain all of the information set forth in
such Registration Statement, certain parts of which are omitted in accordance
with the rules and regulations of the Commission. Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company, the Trust, the Preferred Securities and
the Subordinated Debentures. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission or incorporated by reference herein are not
necessarily complete, and, in each instance, reference is made to the copy of
such document so filed for a more complete description of the matter involved.
Each such statement is qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Exchange
Act and, in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the following public reference
facilities maintained by the Commission: 450 Fifth Street, N.W., Washington,
D.C. 20549; 7 World Trade Center, Suite 1300, New York, New York 10048; and the
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, DC 20549, upon payment of prescribed rates. The Commission maintains
in Internet web site that contains reports, proxy and information statements and
other information regarding issuers who file electronically with the Commission.
The address of that site is http://www.sec.gov.
No separate financial statements of the Trust have been included herein.
The Company does not consider that such financial statements would be material
to holders of Preferred Securities because: (i) all of the voting securities of
the Trust will be owned by the Company, a reporting company under the Exchange
Act; (ii) the Trust has no independent operations but exists for the sole
purpose of issuing securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in Subordinated
Debentures issued by the Company; and (iii) the obligations of the Company
described herein to provide certain indemnities in respect of and be responsible
for certain costs, expenses, debts and liabilities of the Trust under the
Indenture and pursuant to the Trust Agreement, the Guarantee issued by the
Company with respect to the Preferred Securities, the Subordinated Debentures
purchased by the Trust and the related Indenture, taken together, constitute, in
the belief of the Company and the Trust, a full and unconditional guarantee of
payments due on the Preferred Securities. See "Description of the Subordinated
Debentures" and "Description of the Guarantee."
The Trust is not currently subject to the information reporting
requirements of the Exchange Act. The Trust will become subject to such
requirements upon the effectiveness of the Registration Statement, although it
intends to seek and expects to receive an exemption therefrom.
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TABLE OF CONTENTS
Page
Prospectus Summary 5
Selected Consolidated Financial Data 9 1,400,000 PREFERRED SECURITIES
Ratio of Earnings to Fixed Charges 10
Risk Factors 11 FCNB CAPITAL TRUST
Use of Proceeds 17 8.25% Cumulative Trust Preferred Securities
Market for the Preferred Securities 17 (Liquidation Amount $25 per Preferred Security)
Accounting Treatment 17 guaranteed, as described herein, by
Capitalization 18
Unaudited Pro Forma Combined
Financial Information 19
The Company 27
The Trust 28
Description of the Preferred
Securities 30
Description of the Subordinated
Debentures 41 FCNB CORP LOGO
Book-Entry Issuance 50
Description of the Guarantee 51
Relationship Among the Preferred
Securities Subordinated Debentures
and the Guarantee 54
Certain Federal Income Tax
Consequences 55
ERISA Considerations 59
Underwriting 59
Validity of Securities 61 ___________________
Experts 61
Incorporation of Certain Documents by Prospectus
Reference 61
Available Information 62 July 15, 1998
___________________
NO PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR Sandler O'Neill & Partners, L.P.
REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE TRUST,
THE COMPANY OR THE UNDERWRITERS. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY Legg Mason Wood Walker
CIRCUMSTANCES, CREATE ANY IMPLICATION Incorporated
THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE OF
THIS PROSPECTUS. THIS PROSPECTUS DOES
NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OFFERED HEREBY IN ANY
JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO
OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
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