As filed with the Securities and Exchange Commission on January 2, 2003
Registration No. 333-101529
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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IBERIABANK Corporation
(Exact name of registrant as specified in its charter)
Louisiana 6711 72-1280718
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
1101 East Admiral Doyle Drive
New Iberia, Louisiana 70560
(337) 365-2361
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Copy to: DARYL G. BYRD Copy to:
ANTHONY J. CORRERO, III 1101 East Admiral Doyle Drive RAYMOND A. TIERNAN
Correro Fishman Haygood Phelps New Iberia, Louisiana 70560 Elias, Matz, Tiernan & Herrick, L.L.P.
Walmsley & Casteix, L.L.P. (337) 521-4003 735 15th Street, N.W.
46th Floor, 201 St. Charles Avenue (Name, address, including zip code, 12th Floor
New Orleans, Louisiana 70170-4600 and telephone number, including Washington, D.C. 20005
area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: Upon the
date of the shareholders' meeting of Acadiana Bancshares, Inc. described in
this registration statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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No person has been authorized to give any information or to make any
representations other than those contained here. All information concerning
IBKC has been furnished by IBKC and all information herein concerning Acadiana
has been furnished by Acadiana. IBKC has represented and warranted to Acadiana,
and Acadiana has represented and warranted to IBKC, that the particular
information each has provided is true and complete.
ACADIANA BANCSHARES, INC.
PROXY STATEMENT FOR SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD FEBRUARY 14, 2003
IBERIABANK CORPORATION
PROSPECTUS
COMMON STOCK
Dear Shareholder:
We are having a special meeting of our shareholders on February 14, 2003 at
1:00 p.m., local time, in the Les Saisons Room at A'la Carte, located at 301
Heymann Boulevard, Lafayette, Louisiana. The official notice of the meeting is
on the following page.
At the meeting we will ask you to approve an agreement that will result in
the merger of our company into IBERIABANK Corporation, whose stock trades on
the NASDAQ Stock Market under the symbol IBKC. Our subsidiary, LBA Savings
Bank, will also merge into IBERIABANK, a wholly owned subsidiary of IBERIABANK
Corporation.
If the merger takes place, each outstanding share of common stock of
Acadiana will be converted into a combination of $7.88 cash and $31.50 in
IBERIA common stock based on the average closing price during a specified
measurement period, except that the number of shares of IBERIA common stock you
receive for each of your shares of your company will not be less than .6848
shares and not more than .9265 shares of IBERIA common stock, subject to
possible adjustments.
On December 27, 2002, the closing sales price of a share of IBERIA's common
stock on the NASDAQ Stock Market was $39.25 and, based on that price, and
assuming none of the possible adjustments applies, you would receive 0.8025
shares of IBERIA common stock and $7.88 cash for each of your shares of
Acadiana. Of course, there is no assurance as to the market value of IBERIA's
common stock on the date the proposed merger is consummated.
This document is both a proxy statement of Acadiana in connection with the
transactions and a prospectus of IBERIA with respect to the shares of its
common stock to be issued if the merger is completed. IBERIA is registering up
to 1,152,528 shares of its common stock which may be issued in connection with
the merger.
Your board of directors approved the agreement and believes it is in the
best interests of shareholders. The board of directors recommends that you vote
for the agreement and urges you to execute the enclosed proxy and return it
promptly in the accompanying envelope.
Very truly yours,
[SIGNATURE OF GERALD G. REAUX, JR.
APPEARS HERE]
--------------------------------------
Chairman of the Board, President
and Chief Executive Officer
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OF IBERIABANK
CORPORATION OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Proxy Statement and Prospectus is January 6, 2003 and is
first being mailed to shareholders of Acadiana on or about January 10, 2003.
ACADIANA BANCSHARES, INC.
200 WEST CONGRESS STREET
LAFAYETTE, LOUISIANA 70501
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
Lafayette, Louisiana
January 10, 2003
A special meeting of shareholders of Acadiana Bancshares, Inc. will be held
on February 14, 2003 at 1:00 p.m., local time, in the Les Saisons Room at A'La
Carte, located at 301 Heymann Boulevard, Lafayette, Louisiana, to vote upon the
following matters:
1. A proposal to approve an Agreement and Plan of Merger pursuant to
which, among other things, Acadiana will merge into IBERIABANK Corporation,
and on the effective date of the merger each outstanding share of common
stock of Acadiana will be converted into the right to receive $7.88 in cash
and $31.50 in IBERIA common stock based on the average closing price during
a specified measurement period, but not less than .6848 nor more than .9265
shares of IBERIA common stock, subject to adjustment as determined in
accordance with the terms of the merger agreement;
2. A proposal to adjourn the special meeting to a later date or dates, if
necessary, to permit further solicitation of proxies if there are not
sufficient votes at the time of the special meeting to approve the merger
agreement; and
3. Such other matters as may properly come before the meeting or any
adjournments thereof.
Only shareholders of record at the close of business on December 31, 2002,
are entitled to notice of and to vote at the meeting.
Dissenting shareholders who comply with the procedural requirements of the
Business Corporation Law of Louisiana will be entitled to receive payment of
the fair cash value of their shares if the merger is effected upon approval by
less than eighty percent of the total voting power of Acadiana.
Your vote is important regardless of the number of shares you own. Whether
or not you plan to attend the meeting, please mark, date and sign the enclosed
proxy and return it promptly in the enclosed stamped envelope. Your proxy may
be revoked by appropriate notice to Acadiana's Secretary at any time prior to
the voting thereof.
By Order of the Board of Directors
[SIGNATURE OF GERALD G. REAUX, JR.
APPEARS HERE]
______________________________________
Gerald G. Reaux, Jr., Chairman of the
Board,
President and Chief Executive Officer
TABLE OF CONTENTS
Page
----
QUESTIONS AND ANSWERS ABOUT THE MERGER................................ 1
SUMMARY............................................................... 2
SELECTED FINANCIAL DATA OR ACADIANA................................... 6
SELECTED FINANCIAL DATA OF IBERIA..................................... 7
COMPARATIVE PER SHARE DATA............................................ 8
RECENT MARKET PRICES.................................................. 8
WHERE YOU CAN FIND MORE INFORMATION................................... 9
INTRODUCTORY STATEMENT................................................ 11
General............................................................ 11
Purpose of the Meeting............................................. 11
Shares Entitled to Vote; Quorum; Vote Required..................... 11
Solicitation, Voting and Revocation of Proxies..................... 12
THE MERGER AGREEMENT.................................................. 12
Background of and Reasons for the Merger Agreement................. 12
Opinion of Acadiana's Financial Advisor............................ 14
Conversion of Acadiana Common Stock................................ 22
Effective Date..................................................... 23
Procedure for Exchanging Certificates.............................. 23
Treatment of Acadiana Stock Options................................ 23
Conditions to the Merger........................................... 24
Conduct of Business Prior to the Effective Date.................... 25
Waiver, Amendment and Termination.................................. 27
Interests of Certain Persons....................................... 27
Indemnification and Insurance.................................. 27
Consulting Agreement........................................... 28
Severance Payments............................................. 28
Stock Options.................................................. 28
Directors' and Officers' Commitments........................... 28
Employee Benefits.............................................. 28
Expenses........................................................... 29
Status Under Federal Securities Laws; Restrictions on Resales...... 29
THE STOCK OPTION AGREEMENT............................................ 29
FEDERAL INCOME TAX CONSEQUENCES....................................... 30
DISSENTERS' RIGHTS.................................................... 31
INFORMATION ABOUT ACADIANA............................................ 33
INFORMATION ABOUT IBERIA.............................................. 33
ADJOURNMENT OF THE SPECIAL MEETING.................................... 33
LEGAL MATTERS......................................................... 33
EXPERTS............................................................... 34
OTHER MATTERS......................................................... 34
SHAREHOLDER PROPOSALS FOR THE ACADIANA 2003 ANNUAL MEETING............ 34
IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC. PRO FORMA
COMBINED FINANCIAL INFORMATION...................................... F-1
Appendix A--Fairness Opinion of Triangle Capital Partners, LLC........ A-1
Appendix B--Agreement and Plan of Merger, dated as of September 22,
2002, by and between IBERIABANK Corporation and Acadiana
Bancshares, Inc..................................................... B-1
QUESTIONS AND ANSWERS ABOUT THE MERGER
Q: Who are the parties to the merger?
A: Acadiana Bancshares, Inc. will merge into IBERIABANK Corporation. After the
merger, Acadiana will cease to exist and IBERIA will continue as the
surviving corporation.
Q: What am I being asked to vote on?
A: You are being asked to vote on the merger. We cannot complete the merger
unless the holders of at least two-thirds of the Acadiana stock present at
the shareholders meeting vote to approve it.
Q: If the merger is completed, what will I receive?
A: If the merger is completed, each share of Acadiana common stock owned by
you will be converted into the right to receive $7.88 in cash and $31.50 in
shares of common stock of IBERIA, subject to adjustment, as described under
the heading "Conversion of Acadiana Common Stock" on page 22 of this
document.
Q: How many shares of IBERIA common stock will I receive in the merger?
A: You will receive between 0.6848 and 0.9265 shares of IBERIA common stock
for each share of Acadiana common stock that you hold at the time of the
merger, depending on the average market price of IBERIA common stock during
a specified period of ten trading days. If this average price is $34.00 or
less, you will receive 0.9265 shares of IBERIA common stock for each shares
of Acadiana common stock that you own. If this average price equals or
exceeds $46.00, you will receive 0.6848 shares of IBERIA common stock. If
this average price is greater than $34.00 and less than $46.00, you will
receive a number of shares of IBERIA common stock between 0.6848 and 0.9265.
There is one potential adjustment to the mix of cash and stock you will
receive. If the total number of shares that all Acadiana shareholders
will receive is more than 19.9% of IBERIA's common stock, the total
number of shares would be reduced to 19.9% and the cash amount would
increase.
Q: When will the merger be completed?
A: Assuming we receive the required approvals, we expect the merger to be
completed during the first quarter of 2003.
Q: How can I vote if I do not plan to attend the special meeting?
A: You should read this document carefully and then mail your signed proxy
card approving, disapproving or abstaining on the merger in the enclosed
return envelope as soon as possible.
Q: Should I send in my stock certificates now?
A: No. Promptly after completion of the merger, a letter of transmittal,
together with instructions for the exchange of Acadiana common stock
certificates for IBERIA common stock certificates and cash will be mailed
to each shareholder of record of Acadiana on the effective date of the
merger. You should not send in your stock certificates until you have
received the letter of transmittal.
Q: Where can I get more information about IBERIA and the merger?
A: You may obtain more information about IBERIA and the merger in this
document and in the other sources listed on page 9.
1
SUMMARY
This summary highlights selected information from this document and may not
contain all of the information that is important to you. To understand the
merger fully and for a more complete description of the legal terms of the
merger, you should read carefully this entire document, including the merger
agreement and the other documents to which we have referred you. See "Where You
Can Find More Information" beginning on page 9. Page references are included in
this summary to direct you to a more complete description of the topics.
The Companies
IBERIABANK Corporation, a Louisiana corporation, is a bank holding company
that owns all of the outstanding stock of IBERIABANK. IBERIA's principal
executive offices are at 1101 East Admiral Doyle Drive, New Iberia, Louisiana
70560, and its telephone number is (337) 365-2361.
Acadiana Bancshares, Inc., a Louisiana corporation, is a bank holding
company that owns all of the outstanding stock of LBA Savings Bank. Acadiana's
principal executive offices are at 200 West Congress Street, Lafayette,
Louisiana 70501, and its telephone number is (337) 232-4631.
For where you can find more information about IBERIA and Acadiana, please
see "Where You Can Find More Information" beginning on page 9.
The Meeting
Date; Voting. A special meeting of shareholders of Acadiana will be held on
February 14, 2003 as described in the accompanying Notice of Special Meeting of
Shareholders. Only record holders of the common stock of Acadiana on December
31, 2002 are entitled to notice of and to vote at the meeting. On that date
there were shares of Acadiana common stock outstanding, each of which is
entitled to one vote on each matter properly to come before the meeting.
Purpose (page 11). The purpose of the meeting is to vote upon a proposal to
approve an Agreement and Plan of Merger that will merge Acadiana into IBERIA.
Shareholders of Acadiana will receive $7.88 cash and $31.50 in IBERIA common
stock, subject to adjustment, as described below under "Conversion of Acadiana
common stock."
Vote Required. The merger agreement must be approved by a two-thirds vote
of the Acadiana common stock present at the Meeting. Directors and executive
officers of Acadiana who own an aggregate of 460,202 shares, or approximately
33% of the outstanding Acadiana common stock, have agreed, subject to certain
conditions, to vote in favor of the merger agreement.
The Merger Agreement (page 12)
Board Recommendation. The financial and other terms of the merger agreement
were arrived at through arm's length negotiations between representatives of
the companies. The board of directors of Acadiana believes that the merger
agreement is in the best interests of shareholders and has, by unanimous vote,
approved it and recommended its approval to shareholders.
2
Opinion of Acadiana's Financial Advisor (page 14). Triangle Capital
Partners, LLC, financial advisor to Acadiana, has delivered its written opinion
to the Board of Directors of Acadiana that, as of September 22, 2002, the date
the merger agreement was entered into, and as of January 6, 2003, the date of
this proxy statement and prospectus, based on and subject to the various
assumptions made, the factors considered, the review undertaken and the
limitations stated in the opinion, the merger consideration, consisting of
$7.88 per share in cash and IBERIA common stock in the exchange ratio ranging
from .6848 to .9265 (subject to adjustment) for Acadiana common stock, was fair
to the holders of Acadiana common stock from a financial point of view.
Triangle's opinion and presentation to the Acadiana board of directors were
among the many factors taken into consideration by the Acadiana board of
directors in making its determination to approve and to recommend that Acadiana
shareholders approve the merger. Triangle's written opinion is attached as
Appendix A to this proxy statement and prospectus. The opinion sets forth
assumptions, limitations and matters considered in the review undertaken in
connection with the opinion. The opinion does not constitute a recommendation
by Triangle to you as to whether or not you should vote in favor of the merger
or as to any other matter relating to the merger. You should read the opinion,
which is attached as Appendix A, carefully and in its entirety.
Conversion of Acadiana Common Stock (page 22). On the date the merger
agreement becomes effective, each outstanding share of Acadiana common stock
will be converted into the right to receive $7.88 cash and $31.50 of IBERIA
common stock determined on the average closing price of IBERIA during the first
10 trading days of the month in which the merger is completed, but not less
than .6848 and not more than .9265 shares of IBERIA common stock, subject to
adjustment in accordance with the Agreement and Plan of Merger, which can be
found herein at Appendix B.
Assuming none of the adjustments applies, the number of shares of IBERIA you
will receive in exchange for your shares of Acadiana common stock will be based
on the average closing price of IBERIA common stock over the first 10 trading
days of the month in which the merger is completed, as follows:
If the average closing price is: Then the exchange ratio will be:
-------------------------------- -------------------------------------------
$46.00 or more 0.6848
Less than $46.00 but more than $34.00 $31.50 divided by the average closing price
$34.00 or less 0.9265
On December 27, 2002, IBERIA common stock closed at $39.25. If this were the
average closing price of IBERIA common stock during the measurement period,
then, you would receive 0.8025 shares of IBERIA common stock plus $7.88 in cash
for each share of Acadiana common stock.
The amount of cash and/or stock that you receive may be adjusted in two
situations: First, the total amount of shares of IBERIA issued to Acadiana
shareholders in the merger cannot exceed 19.9% of the outstanding shares of
IBERIA immediately before the merger. Rather than exceed the 19.9% threshold,
the number of shares of IBERIA which would be issued under the exchange ratio
will be reduced and the $7.88 per share cash consideration will be increased
proportionately. Second, if Acadiana's legal fees in connection with the merger
exceed $180,000, the total amount of cash will be reduced by the excess.
If the average closing price is less than $30.00, Acadiana has the right to
terminate the merger agreement unless IBERIA elects to increase the amount of
cash to be issued to Acadiana shareholders in the merger.
Instead of issuing any fractional share of IBERIA common stock, each
shareholder of Acadiana who would otherwise be entitled to a fractional share
will receive a cash payment, without interest, equal to the fraction multiplied
by the market value of a share of IBKC common stock, as defined in the merger
agreement.
3
Conditions to the Merger (page 24). In addition to approval by the
shareholders of the companies, consummation of the merger agreement is
conditioned upon, among other things:
. receipt of required regulatory approvals, and the expiration of all
applicable waiting periods,
. receipt by the companies of an opinion as to the tax implications of the
Merger, and
. certain other conditions customary for agreements of this sort, such as
the accuracy of representations and warranties and the compliance with all
agreements.
The companies intend to consummate the merger as soon as practicable after
all of the conditions have been met or waived. IBERIA has filed an application
seeking the required regulatory approval and expects to receive it by February
2003. The approval may not be obtained, by then or ever, and the other
conditions to consummation of the merger agreement also may not be satisfied by
such date or at all.
Waiver, Amendment and Termination (page 27). Each of the companies may
waive any of the conditions to its obligation to consummate the merger
agreement other than shareholder and regulatory approvals. The merger agreement
may also be amended at any time before or after shareholder approval by mutual
agreement, but no amendment made after shareholder approval may alter the
amount or type of shares into which Acadiana common stock will be converted or
alter the merger agreement in a manner that would adversely affect any
shareholder of Acadiana.
The merger agreement may be terminated at any time before the merger is
completed by mutual consent, or by either party:
. if the other party breaches any representation, warranty or covenant in
the merger agreement which cannot be cured within 30 days after written
notice of such breach;
. by March 31, 2003 if the merger has not occurred, although that date may
be extended to June 30, 2003, under certain circumstances;
. if any person or group acquires more than 25% of the outstanding shares of
common stock of the other party;
. upon the occurrence of an event that causes or is likely to cause either
party to experience a material adverse effect, as defined in the merger
agreement; or
. on the basis of certain other grounds specified in the merger agreement.
Interests of Certain Persons in the Merger (page 27)
Indemnification and Insurance (page 27). IBERIA has agreed to allow
Acadiana to purchase a continuation of its current officers and directors
liability insurance for premiums not to exceed $50,000, and for a period no
longer than three years. IBERIA has also agreed to indemnify Acadiana's and LBA
Savings Bank's officers, directors and controlling persons against expenses and
liabilities arising out of alleged misstatements or omissions in this document
or the registration statement of which it is a part.
Management Contracts (page 28). On the effective date, Gerald G. Reaux,
Jr., President and Chief Executive Officer and a director of Acadiana and LBA
Savings Bank, will become a consultant to IBERIA. Also, IBERIA has agreed to
perform the obligations of Acadiana under the employment and severance
contracts of seven employees.
Stock Options (page 28). All of the unexercised options to purchase
Acadiana's common stock that are outstanding on the effective date of the
merger will be cancelled. As consideration, option holders will receive a cash
payment equal to the amount the option holder would have received in the
merger, less the exercise price.
4
Directors' and Executive Officers' Commitments (page 28). Each director and
executive officer of Acadiana has agreed, among other things, to vote as a
shareholder in favor of the merger agreement and against any other proposal
that would prevent the merger.
Employee Benefits (page 28). Subject to certain limitations, IBERIA will
provide employees of Acadiana or LBA Savings Bank who become employees of
IBERIA or remain employees of LBA Savings Bank the same employee benefits as
are provided by IBERIA to its employees. IBERIA has also agreed to provide
certain additional benefits under plans of Acadiana and LBA Savings Bank.
The Stock Option Agreement (page 29)
In connection with the merger agreement, Acadiana granted IBERIA an option
to purchase new issued shares of Acadiana common stock up to 4.9% of its
currently outstanding common stock at an exercise price of $23.76 per share.
IBERIA can exercise the option only if specific events take place. These events
generally relate to a competing transaction involving a merger, business
combination or other acquisition of Acadiana or its stock or assets. As of the
date of this document, neither IBERIA nor Acadiana is aware of any such event.
The stock option agreement is intended to increase the likelihood that the
merger will occur and may have the effect of discouraging other companies that
might be interested in acquiring Acadiana.
Federal Income Tax Consequences (page 30)
Completion of the merger agreement is conditioned upon receipt by the
companies of an opinion from Castaing, Hussey & Lolan, LLC, to the effect that,
among other things, each Acadiana shareholder will not recognize gain or loss
for the merger consideration received except with respect to the receipt of
cash. BECAUSE OF THE COMPLEXITY OF THE TAX LAWS, EACH SHAREHOLDER SHOULD
CONSULT HIS TAX ADVISOR CONCERNING THE APPLICABLE FEDERAL, STATE AND LOCAL
INCOME TAX CONSEQUENCES OF THE MERGER.
Dissenters' Rights (page 32)
Under certain conditions, and by complying with the specific procedures
required by statute, shareholders of Acadiana will have the right to dissent
from the merger agreement. If the merger agreement is consummated, any
dissenters may be entitled to receive in cash the fair value of their shares of
Acadiana common stock.
5
SELECTED FINANCIAL DATA OF ACADIANA
Selected financial data with respect to each of the years in the five-year
period ended December 31, 2001 and the nine months ended September 30, 2002 and
2001 is set forth below and should be read in conjunction with Acadiana's 2001
Annual Report to Stockholders and Acadiana's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2002.
Selected Historical Financial Data of Acadiana Bancshares, Inc.
(In thousands, except per share data and ratios)
Nine Months Ended
September 30,
----------------------
2002 2001
---------- ----------
(Unaudited)
Selected Operating Data:
Total interest and dividend income............ $ 14,609 $ 17,466
Total interest expense........................ 7,653 10,534
Net interest income........................... 6,956 6,932
Provision (credit) for loan losses............ -- (173)
Net interest income after loan loss provision. 6,956 7,105
Total noninterest income excluding trading
account gains (losses)....................... 1,610 1,277
Trading account gains (losses)................ -- 32
Total noninterest expense..................... 6,157 5,744
Income tax expense............................ 842 968
Net income.................................... 1,567 1,702
Per Share Data:
Earnings per share--basic..................... $ 1.49 $ 1.53
Earnings per share--diluted................... 1.38 1.45
Dividends declared per share.................. 0.45 0.45
Other Information:
Average number of shares outstanding:
basic........................................ 1,053,208 1,113,232
diluted...................................... 1,139,248 1,173,048
At September 30,
----------------------
2002 2001
---------- ----------
(Unaudited)
Selected Financial Condition Data:
Total assets.................................. $ 308,906 $ 314,647
Investment securities......................... 54,363 29,898
Loans receivable, net......................... 207,027 247,587
Deposits...................................... 208,419 214,108
Borrowings.................................... 69,816 72,101
Stockholders' equity.......................... 28,825 26,299
Book value per share.......................... $ 24.42 $ 22.22
Nine Months Ended
September 30,
----------------------
2002 2001
---------- ----------
(Unaudited)
Performance Ratios:
Return on average assets(1)................... 0.67 % 0.71 %
Return on average stockholders' equity(1)..... 7.60 8.18
Net interest margin........................... 3.16 3.00
Efficiency ratio.............................. 71.88 69.70
Dividend payout ratio......................... 30.76 29.73
Year Ended December 31,
-----------------------------------------------------------
2001 2000 1999 1998 1997
---------- ---------- ---------- ----------- ----------
Selected Operating Data:
Total interest and dividend income............ $ 22,968 $ 24,101 $ 21,407 $ 21,553 $ 20,464
Total interest expense........................ 13,476 14,896 12,195 11,935 10,860
Net interest income........................... 9,492 9,205 9,212 9,618 9,604
Provision (credit) for loan losses............ 20 (83) -- 90 180
Net interest income after loan loss provision. 9,472 9,288 9,212 9,528 9,424
Total noninterest income excluding trading
account gains (losses)....................... 1,816 1,163 1,002 1,170 896
Trading account gains (losses)................ 32 25 (8) (111) 137
Total noninterest expense..................... 7,685 7,045 6,771 6,655 5,878
Income tax expense............................ 1,317 1,207 1,229 1,427 1,632
Net income.................................... 2,318 2,224 2,206 2,505 2,947
Per Share Data:
Earnings per share--basic..................... $ 2.12 $ 1.80 $ 1.60 $ 1.20 $ 1.22
Earnings per share--diluted................... 2.00 1.78 1.55 1.17 1.20
Dividends declared per share.................. 0.60 0.60 0.52 0.44 0.38
Other Information:
Average number of shares outstanding:
basic........................................ 1,094,846 1,235,521 1,377,635 2,088,775 2,408,779
diluted...................................... 1,158,207 1,247,602 1,422,555 2,149,224 2,463,026
At December 31,
-----------------------------------------------------------
2001 2000 1999 1998 1997
---------- ---------- ---------- ----------- ----------
(In thousands except per share data)
Selected Financial Condition Data:
Total assets.................................. $ 315,505 $ 324,467 $ 305,696 $ 282,089 $ 277,066
Investment securities......................... 51,701 35,912 37,981 38,764 41,696
Loans receivable, net......................... 229,891 264,805 244,996 225,752 212,840
Deposits...................................... 215,569 224,531 213,212 201,654 195,043
Borrowings.................................... 71,729 69,756 63,850 47,228 36,628
Stockholders' equity.......................... 26,812 28,782 27,750 32,174 44,562
Book value per share.......................... $ 22.65 $ 20.52 $ 18.57 $ 17.67 $ 17.26
Year Ended December 31,
-----------------------------------------------------------
2001 2000 1999 1998 1997
---------- ---------- ---------- ----------- ----------
(In thousands except per share data and ratios)
Performance Ratios:
Return on average assets(1)................... 0.73 % 0.70 % 0.76 % 0.87 % 1.10 %
Return on average stockholders' equity(1)..... 8.58 7.99 7.57 6.05 6.38
Net interest margin........................... 3.11 3.00 3.28 3.41 3.66
Efficiency ratio.............................. 67.77 67.79 66.34 62.33 55.26
Dividend payout ratio......................... 28.73 34.40 33.27 37.05 31.76
--------
(1) All ratios are annualized where appropriate.
6
Selected Financial Data of IBERIA
Selected financial data with respect to each of the years in the five-year
period ended December 31, 2001 and the nine months ended September 30, 2002 and
2001 is set forth below and should be read in conjunction with IBKC's 2001
Report on Form 10-K and IBKC's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2002.
Selected Historical Financial Data of IBERIABANK CORPORATION
(In thousands, except share data)
Nine Months Ended
September 30, Year Ended December 31,
---------------------- --------------------------------------------------------
2002 2001 2001 2000 1999 1998 1997
---------- ---------- ---------- ---------- ---------- ---------- --------
- (unaudited)
Income Statement Data:
Total interest income....................... $ 65,910 $ 76,808 $ 100,368 $ 103,966 $ 95,029 $ 79,224 $ 69,607
Total interest expense...................... 21,511 36,970 46,018 52,730 45,380 38,458 36,050
Net interest income......................... 44,399 39,838 54,350 51,236 49,649 40,766 33,557
Provision for loan losses................... 4,498 2,698 5,046 3,861 2,836 903 1,097
Net interest income after loan loss
provision.................................. 39,901 37,140 49,304 47,375 46,813 39,863 32,460
Total noninterest income excluding security
gains (losses)............................. 13,303 10,547 15,025 14,577 13,735 10,211 5,398
Security gains (losses)..................... (41) 118 119 (1,759) -- 3 266
Total noninterest expense................... 32,815 30,780 41,711 39,704 44,881 33,758 29,001
Income tax expense.......................... 6,612 6,283 8,229 7,514 6,138 6,182 3,780
Net income.................................. 13,736 10,742 14,508 12,975 9,529 10,137 5,343
Per Share Data:
Net income.................................. 2.23 1.74 2.36 2.12 1.53 1.56 0.83
Cash dividends.............................. 0.56 0.52 0.70 0.66 0.63 0.57 0.45
Book value.................................. 24.71 22.74 23.03 20.99 18.62 18.91 17.75
Other Information:
Average shares outstanding, diluted......... 6,161 6,184 6,143 6,114 6,241 6,503 6,459
Statement of Condition Data
(Period End):
Total assets................................ $1,460,047 $1,481,507 $1,426,825 $1,396,162 $1,363,578 $1,401,630 $947,282
Securities.................................. 317,088 317,921 321,907 344,545 384,881 377,556 192,442
Loans, net of unearned income............... 1,003,103 959,251 956,015 940,525 842,878 768,235 660,063
Total deposits.............................. 1,212,509 1,234,587 1,237,394 1,143,187 1,100,014 1,220,594 786,864
Long-term debt.............................. 37,919 46,684 31,437 60,843 52,053 45,639 46,728
Stockholders' equity........................ 143,031 135,394 134,417 127,042 117,189 123,967 115,564
Performance Ratios:
Return on average assets(1)................. 1.27 % 1.02% 1.02% 0.94 % 0.70% 0.93 % 0.57%
Return on average stockholders' equity(1)... 13.07 10.77 10.83 10.75 7.84 8.47 4.66
Net interest margin(TE)..................... 4.53 4.03 4.11 3.95 3.96 4.03 3.63
Efficiency(2)............................... 56.91 60.95 60.02 61.99 70.81 66.22 73.94
Dividend payout............................. 23.73 29.08 28.71 31.42 41.88 36.56 54.41
--------
(1) Interim period ratios are annualized.
(2) Noninterest expense divided by the sum of net interest income and
noninterest income.
7
COMPARATIVE PER SHARE DATA (unaudited)
The following table presents certain information for IBERIA and Acadiana on
an historical, unaudited pro forma combined and unaudited pro forma equivalent
basis. The unaudited pro forma combined information is based upon the
historical financial condition and results of operations of the companies and
adjustments directly attributable to the merger agreement based on estimates
derived from information currently available. They do not purport to be
indicative of the results that would actually have been obtained if the merger
agreement had been consummated on the date or for the periods indicated below,
or the results that may be obtained in the future.
Nine Months Ended September 30, 2002 Year Ended December 31, 2001
------------------------------------ ---------------------------------
Historical Historical
------------------------ ----------------------
IBERIABANK Acadiana Pro IBERIABANK Acadiana Pro
Corporation Bancshares Forma Corporation Bancshares Forma
----------- ---------- ---------- ----------- ---------- ----------
(In thousands, except per share data)
-------------------------------------
Summary of Income
Net interest income........... $ 44,399 $ 6,956 $ 52,544 $ 54,350 $ 9,492 $ 65,400
Provision for loan losses...... 4,498 -- 4,498 5,046 20 5,066
Noninterest income............ 13,262 1,610 14,872 15,144 1,848 16,992
Noninterest expense........... 32,815 6,157 39,699 41,711 7,685 50,362
Net income.................... 13,736 1,567 15,603 14,508 2,318 17,211
Per Common Share
Basic......................... $ 2.41 $ 1.49 $ 2.33 $ 2.48 $ 2.12 $ 2.66
Diluted....................... 2.23 1.38 2.18 $ 2.36 $ 2.00 $ 2.41
Average Shares Outstanding
Basic......................... 5,707,570 1,053,208 6,695,799 5,843,861 1,094,846 6,832,090
Diluted....................... 6,160,767 1,139,248 7,148,996 6,142,958 1,158,207 7,131,187
RECENT MARKET PRICES
On September 20, 2002, the first business day before the public announcement
that the companies entered into the merger agreement, the closing sales price
for a share of IBERIA common stock, as quoted on the NASDAQ Stock Market, was $
38.40. On December 27, 2002, the closing sales price for a share of IBERIA
common stock was $39.25, and, based on that price, you would receive for each
of your shares of Acadiana $7.88 in cash and 0.8025 shares of IBERIA common
stock. No assurance can be given as to the sales price of a share of IBERIA
common stock on the effective date of the merger.
On September 20, 2002, the first business day before the public announcement
that the companies entered into the merger agreement, the closing sales price
for a share of Acadiana common stock, as quoted on the American Stock Exchange,
was $ 23.76. On December 26, 2002, the closing sales price for a share of
Acadiana common stock was $38.49.
8
WHERE YOU CAN FIND MORE INFORMATION
Each of IBERIA and Acadiana files annual, quarterly and current reports,
proxy statements and other information with the SEC. You may read and copy any
of those filings at the SEC's public reference room in Washington D.C., which
is located at the following address: Public Reference Room, Judiciary Plaza,
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549.
You can request copies of these documents, upon payment of a duplicating
fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the SEC's public reference rooms. The filings
are also available to the public from document retrieval services and at the
SEC's Internet website (http://www.sec.gov).
IBERIA has filed with the SEC a registration statement on Form S-4 and this
document is part of that registration statement. As permitted by the SEC's
rules, this document does not contain all of the information you can find in
the registration statement. The registration statement is available for
inspection and copying as set forth above.
The SEC allows IBERIA and Acadiana to "incorporate by reference" into this
document, which means that they can disclose important information to you by
referring you to another document filed separately with the SEC. The
information incorporated by reference is considered to be part of this
document, except for any information superseded by information contained in
later filed documents incorporated by reference in this document. Each of
IBERIA and Acadiana incorporates by reference the respective documents filed by
them with the SEC listed below and any future filings made by it with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
prior to the meeting date.
IBERIA SEC Filings (File
No. 000-25756) Period/Date
------------------------ -----------
Annual Report on Form 10-K Year ended December 31,
2001
Quarterly Report on Form Three Months and Nine
10-Q Months Ended September
30, 2002
Current Reports on Form Filed on January 23,
8-K 2002, July 15, 2002,
September 15 and 23,
2002, October 21, 2002,
and November 25, 2002
Acadiana SEC Filings
(File No. 001-14364) Period/Date
-------------------- -----------
Annual Report on Form 10-K Year ended December 31,
2001
Quarterly Report on Form Three Months and Nine
10-Q Months Ended September
30, 2002
Current Reports on Form Filed on October 11, 2002
8-K
In addition, the merger agreement is attached as Appendix B to this document.
Accompanying this proxy statement and prospectus are Acadiana's Annual
Report to Stockholders for 2001 and Quarterly Report on Form 10-Q for the three
months and nine months ended September 30, 2002.
9
You may request a copy of all documents incorporated by reference in this
document but not otherwise accompanying this document, at no cost, by writing
or telephoning the appropriate company at the following addresses:
IBERIABANK Corporation Acadiana Bancshares, Inc.
1101 East Admiral Doyle Drive 200 West Congress Street
New Iberia, Louisiana 70560 Lafayette, Louisiana 70501
Attention: Daryl G. Byrd Attention: Gerald G. Reaux, Jr.
(337) 521-4003 (337) 232-4631
To obtain timely delivery, you should request desired information no later
than five business days before the date of the meeting, or by February 7, 2003.
You should rely only on the information contained or incorporated by
reference in this document. Neither IBERIA nor Acadiana has authorized anyone
else to provide you with information that is different from that which is
contained in this document. Moreover, neither IBERIA nor Acadiana is making an
offer to sell or soliciting an offer to buy any securities other than the
IBERIA common stock to be issued by IBERIA in the merger, and neither IBERIA
nor Acadiana is making an offer of such securities in any state where the offer
is not permitted. The information contained in this document speaks only as of
its date unless the information specifically indicates that another date
applies.
10
INTRODUCTORY STATEMENT
General
This proxy statement and prospectus is furnished to the shareholders of
Acadiana Bancshares, Inc. in connection with the solicitation of proxies on
behalf of Acadiana's board of directors for use at a special meeting of
shareholders of Acadiana to be held on the date and at the time and place
specified in the accompanying notice.
Acadiana and IBERIA have each supplied all information with respect to it
and its consolidated subsidiaries. Unless the context otherwise requires,
Acadiana Bancshares, Inc. and LBA Savings Bank, its wholly owned bank
subsidiary, are collectively referred to herein as "Acadiana," and IBERIABANK
Corporation and its subsidiaries are collectively referred to herein as
"IBERIA."
Purpose of the Meeting
The purpose of the meeting is to consider and vote upon a proposal to
approve an Agreement and Plan of Merger between IBERIA and Acadiana, pursuant
to which, among other things, Acadiana will merge into IBERIA and promptly
thereafter LBA Savings Bank will merge into IBERIABANK, a wholly owned banking
subsidiary of IBERIA, and each outstanding share of common stock of Acadiana
will be converted into the right to receive $7.88 cash and $31.50 in shares of
common stock of IBERIA, subject to adjustment, as described under the heading
"Conversion of Acadiana common stock."
At the meeting, shareholders will also consider and vote upon a proposal to
adjourn the meeting, if necessary, to permit further solicitation of proxies if
there are not sufficient votes at the time of the meeting to approve the merger
agreement and to consider any other matters that may be properly submitted for
a vote at the meeting.
Shares Entitled to Vote; Quorum: Vote Required
Only holders of record of Acadiana common stock at the close of business on
December 31, 2002 are entitled to notice of and to vote at the meeting. On that
date, there were 1,180,542 shares of Acadiana common stock outstanding, each of
which is entitled to one vote on each matter properly brought before the
meeting. The presence at the meeting, in person or by proxy, of the holders of
a majority of the outstanding shares of common stock of Acadiana is necessary
to constitute a quorum.
The merger agreement must be approved by the affirmative vote of the holders
of at least two-thirds of the Acadiana common stock present at the meeting. An
abstention will have the effect of a vote against the merger agreement and will
cause an Acadiana shareholder otherwise entitled to dissenters' rights to
forfeit any claim to such rights. A broker non-vote will be counted for
purposes of determining a quorum but will not be counted in determining the
voting power present with respect to the vote on the merger agreement and thus
will have no effect on the vote.
The affirmative vote of a majority of the votes cast on the matter at the
meeting is required to approve the proposal to adjourn the meeting if necessary
to permit further solicitation of proxies on the proposal to approve the merger
agreement and any other matter properly submitted to shareholders for their
consideration at the special meeting. Because of the vote required for the
proposal to adjourn the special meeting, abstentions and broker "non-votes"
will have no effect on this proposal.
Directors and executive officers of Acadiana beneficially owning an
aggregate of 460,202 shares, or approximately 33% of the outstanding Acadiana
common stock, have agreed to vote in favor of the merger agreement.
11
Solicitation, Voting and Revocation of Proxies
In addition to soliciting proxies by mail, directors, officers and employees
of Acadiana and IBERIA, without receiving additional compensation, may solicit
proxies by telephone, fax, e-mail and in person. Arrangements will also be made
with brokerage firms and other custodians, nominees and fiduciaries to forward
solicitation materials to the beneficial owners of shares of Acadiana common
stock, and Acadiana will reimburse such parties for reasonable out-of-pocket
expenses incurred. The cost of soliciting proxies is being paid by Acadiana.
The form of proxy that accompanies this proxy statement and prospectus
permits each holder of record of Acadiana common stock on the record date to
vote on all matters that properly come before the meeting. Where a shareholder
specifies his choice on the accompanying form of proxy with respect to the
proposal to approve the merger agreement, the shares represented by the proxy
will be voted in accordance with that specification. If no specification is
made, the shares will be voted in favor of the merger agreement and to adjourn
the meeting, if necessary. If an Acadiana shareholder does not sign and return
a proxy and specify on the proxy an instruction to vote against the merger
agreement, he will not be able to exercise dissenters' rights unless he attends
the meeting in person and votes against the merger agreement and gives written
notice of his dissent from the merger agreement at or prior to the meeting.
A proxy may be revoked at any time before it is voted by:
. giving written notice of revocation at any time before its exercise to the
Secretary of Acadiana, and
. executing and delivering to the Secretary at any time before its exercise
a later dated proxy or
. attending the meeting and voting in person.
THE MERGER AGREEMENT
The following brief description does not purport to be complete. A copy of
the merger agreement is attached as Appendix B to this proxy
statement/prospectus and is incorporated by reference. We encourage you to read
the merger agreement completely and carefully. It is the legal document that
governs the merger.
Background of and Reasons for the Merger Agreement
The Acadiana board periodically has reviewed the company's performance,
compared its performance with that of certain relatively comparable publicly
traded institutions in the banking and thrift industries, reviewed market
activity in Acadiana's common stock, considered various business opportunities
and strategies available to Acadiana and discussed the general economic,
regulatory, competitive and business pressures affecting Acadiana and LBA
Savings Bank. In addition, the Acadiana board, on an informal basis and during
strategic planning sessions, would periodically review merger and acquisition
activity in the thrift and banking industry.
In November 2001, Daryl Byrd, President and Chief Executive Officer of
IBERIA, approached Jerry Reaux, Chairman, President and Chief Executive Officer
of Acadiana, and inquired as to Acadiana's interest in a possible merger
transaction with IBERIA. The parties entered into confidentiality agreements
and exchanged certain preliminary information. Approximately two weeks later,
Acadiana terminated these discussions when the parties could not agree, on a
preliminary basis, as to merger consideration and other terms. In late August
2002, conversations between Acadiana and IBERIA resumed as it appeared that
IBERIA was in a position to significantly increase the amount of merger
consideration from the amount previously indicated. During the first week of
September 2002, Jerry Reaux, Chairman, President and Chief Executive Officer of
Acadiana informed the members of Acadiana's board of directors that
conversations with IBERIA had resumed. IBERIA presented Acadiana with a written
indication of interest, dated September 9, 2002, outlining the terms of a
potential merger with consideration of $7.88 in cash plus shares of IBERIA
common stock with a value of approximately $31.50, with certain collars, for
each share of Acadiana common stock. The board of directors of Acadiana
authorized management to proceed with discussions with IBERIA based upon the
terms outlined in the indication of interest and authorized due diligence
review of IBERIA. Concurrently, the parties with the assistance of their
respective financial advisors and legal counsel, negotiated the terms of the
merger agreement.
12
The Acadiana board met again on September 22, 2002 and reviewed the
background of the proposed merger and the status of the negotiations to date.
The Acadiana board carefully reviewed and considered, with the assistance of
its financial advisor and legal counsel, the financial and legal aspects of the
proposed merger agreement with IBERIA. The Acadiana board also carefully
considered the terms of the proposed stock option agreement and other related
agreements. After its review, the Acadiana board authorized execution of the
merger agreement, the stock option agreement and the other related agreements
and documents. Each director of Acadiana also entered into a support agreement
with IBERIA obligating them to vote their shares in favor of the merger
agreement with IBERIA and against any other transaction.
The Acadiana board has determined that the terms of the merger, the merger
agreement, and the proposed issuance of IBERIA common stock and cash in
connection with the merger are advisable and fair to and in the best interest
of, Acadiana and its shareholders. In reaching its determination, the Acadiana
board considered a number of factors. The Acadiana board did not assign any
specific or relative weights to the factors considered, and individual
directors may have given different weights to different factors. The material
factors considered were as follows:
. Information concerning the business, earnings, operations, financial
condition, prospects, capital levels and asset quality of IBERIA,
individually and as combined with Acadiana.
. The written opinion rendered to the Acadiana board by Acadiana's financial
advisor that, as of the date of the opinion, and subject to the various
assumptions made and limitations stated in the opinion, the merger
consideration consisting of $7.88 per share in cash and IBERIA common
stock in the exchange ratio ranging from .6848 to .9265 for Acadiana
common stock was fair, from a financial point of view, to holders of
Acadiana common stock. The opinion of Acadiana's financial advisor is
attached as Appendix A and should be reviewed for the assumptions made in
connection with, and limitations on, such opinion.
. The terms of the merger agreement, the stock option agreement and other
documents executed in connection with the merger.
. The current and prospective economic, competitive and regulatory
environment facing each institution and financial institutions generally.
. The results of the due diligence investigation conducted by the management
of Acadiana, including assessment of credit policies, asset quality,
interest rate risk, litigation and adequacy of loan loss reserves.
. The Acadiana board's familiarity with and review of IBERIA's business,
operations, earnings, prospects, financial condition, asset quality and
capital levels.
. The opportunities for expense reductions, operating efficiencies and
revenue enhancements in the combined entity.
. The nature of, and likelihood of obtaining, the regulatory approvals that
would be required for the merger.
. The additional liquidity provided by IBERIA's common stock compared to
Acadiana's common stock.
. The historical market prices of Acadiana's common stock and the fact that
the proposed $39.38 per share merger consideration represented a 66%
premium over the per share closing price of Acadiana's common stock on the
business day before the merger was announced.
. Results that could be expected to be obtained by Acadiana if it continued
to operate independently, and the likely benefits to stockholders of such
course, as compared with the value of the merger consideration being
offered by IBERIA.
Acadiana's board of directors unanimously recommends that the holders of
Acadiana common stock vote "FOR" adoption of the Agreement and Plan of Merger.
13
Opinion of Acadiana's Financial Advisor
Acadiana retained Triangle Capital Partners, L.L.C. to act as its financial
advisor in connection with analyzing its strategic alternatives, including a
possible merger and related matters. As part of its engagement, Triangle
agreed, if requested by Acadiana, to render an opinion with respect to the
fairness, from a financial point of view, to the holders of Acadiana common
stock, of the merger consideration. Triangle is regularly engaged in
evaluations of businesses and their securities and in advising financial
institutions and other companies with regard to mergers and acquisitions.
Acadiana selected Triangle as its financial advisor based upon Triangle's
qualifications, expertise and reputation in that capacity.
Triangle delivered its written opinion to the board of Acadiana dated
September 22, 2002 that, based upon and subject to the assumptions and
limitations described in the opinion, the merger consideration to be paid by
IBERIA was fair to Acadiana shareholders, from a financial point of view, as of
the date of the opinion. Triangle updated its opinion as of the date of this
document. As used in this section, "merger consideration" refers to the
conversion into cash in the amount of $7.88 per share of the common stock of
Acadiana, and common stock in an exchange ratio ranging from 0.6848 to 0.9265
shares of IBERIA common stock, subject to adjustment as set forth in the merger
agreement, proposed to be received by the holders of shares of common stock of
Acadiana, other than any such shares held by IBKC or its affiliates. No
limitations were imposed by Acadiana on Triangle with respect to the
investigations made or the procedures followed in rendering its opinion.
The full text of Triangle's written opinion to the Acadiana board, dated as
of the date of this document, which sets forth the assumptions made, matters
considered and extent of review by Triangle, is attached as Appendix A and is
incorporated herein by reference. You should read the fairness opinion
carefully and in its entirety. The following summary of Triangle's opinion is
qualified in its entirety by reference to the full text of the opinion.
Triangle's opinion is directed to the Acadiana board and does not constitute a
recommendation to any shareholder of Acadiana as to how a shareholder should
vote with regard to the merger at the Acadiana special meeting described in
this document. The opinion addresses only the financial fairness of the
consideration to be received by the holders of Acadiana common stock. The
opinion does not address the relative merits of the merger or any alternatives
to the merger, the underlying decision of the Acadiana board to approve or
proceed with or effect the merger, or any other aspect of the merger.
Triangle, in connection with rendering its original opinion:
. reviewed Acadiana's Annual Reports to Shareholders, proxy statements and
annual reports on Form 10-K for the three calendar years ended December
31, 2001, 2000 and 1999, including the audited financial statements
contained therein, and Acadiana's quarterly reports on Form 10-Q for the
calendar quarters ended September 30, 2002, June 30, 2002 and March 31,
2002;
. reviewed IBERIA's Annual Reports to Shareholders, proxy statements and
annual reports on Form 10-K for the three calendar years ended December
31, 2001, 2000 and 1999, including the audited financial statements
contained therein, and IBERIA's quarterly reports on Form 10-Q for the
calendar quarters ended September 30, 2002, June 30, 2002 and March 31,
2002;
. reviewed internal financial information and financial forecasts relating
to the business, earnings, cash flows, assets and prospects of the
respective companies established by management and furnished to Triangle
by Acadiana and IBERIA, respectively, along with certain additional
publicly-available financial information;
. held discussions with members of senior management of Acadiana and IBERIA
and with their respective representatives, including without limitation,
their outside accountants, financial and legal advisors and others,
concerning the past and current results of operations of Acadiana and
IBERIA, their respective current financial condition and managements'
opinion of their respective future prospects;
14
. reviewed the historical record of reported prices, trading activity and
dividend payments for both Acadiana and IBERIA;
. compared the reported financial terms of selected recent business
combinations in the banking industry with the financial terms of the
proposed merger;
. reviewed the merger agreement and certain related documents; and
. performed other analyses as Triangle deemed appropriate under the
circumstances.
The written opinion provided by Triangle to Acadiana, dated as of September
22, 2002 and as of the date of this document, was necessarily based upon
economic, monetary, financial market and other relevant conditions as of the
date the opinion was rendered. Accordingly, it was understood that although
subsequent developments may affect its opinion, Triangle does not have any
obligation to further update, revise or reaffirm its opinion.
In connection with its review and arriving at its opinion, with the consent
of the board of Acadiana, Triangle assumed and relied upon the accuracy and
completeness of the financial information and other pertinent information
provided by Acadiana and IBERIA to Triangle for purposes of rendering its
opinion. Triangle did not assume any obligation to independently verify any of
the information listed above, including, without limitation, information from
published sources, as being complete and accurate. With regard to the financial
information, including forecasts we received from Acadiana and IBERIA, as well
as projections of cost savings, Triangle assumed that this information reflects
the best available estimates and good faith judgments of Acadiana and IBERIA as
to the future performance of the separate and combined entities and that the
forecasts and projections provided a reasonable basis upon which Triangle could
formulate its opinion. Neither Acadiana nor IBERIA publicly discloses internal
management forecasts or projections of the type utilized by Triangle in
connection with Triangle's role as financial advisor to Acadiana, and those
forecasts and projections were not prepared with a view towards public
disclosure. The forecasts and projections were based upon numerous variables
and assumptions that are inherently uncertain, including, among others, factors
relative to the general economic and competitive conditions facing Acadiana and
IBERIA. Accordingly, actual results could vary significantly from those set
forth in the respective forecasts and projections.
Triangle does not purport to be expert in the evaluation of loan portfolios
or the allowance for loan losses with respect to loan portfolios and,
accordingly, assumes that those allowances by Acadiana and IBERIA are adequate
to cover any losses. In addition, Triangle has not reviewed and does not assume
any responsibility for any individual credit files and did not make an
independent evaluation, appraisal or physical inspection of the assets or
liabilities, contingent or otherwise, or individual properties of Acadiana or
IBERIA, nor was Triangle provided with any such appraisals. In addition, for
the purposes of rendering its written opinion, Triangle assumed that (i) the
merger will be consummated in accordance with the terms set forth in the
agreement, without any waiver of any of its material terms or conditions, and
that obtaining the necessary approvals for the merger will not have an adverse
effect on either separate institution or the combined entity, and (ii) the
merger will be consummated in a manner that complies in all respects with the
applicable provisions of the Securities Act, the Exchange Act and all other
applicable federal and state statutes, rules and regulations. Triangle also
assumed that the fee adjustment amount, as defined in the Plan, if any, will
not exceed $3 million. In addition, for purposes of its written opinion,
Triangle relied on advice of counsel and independent accountants to Acadiana
and IBERIA as to all legal and financial reporting matters with respect to
Acadiana and IBERIA, the merger and the merger agreement. No opinion was
expressed by Triangle as to whether any alternative transaction might produce
consideration for the holders of Acadiana common stock in an amount in excess
of that contemplated in the merger. In each analysis described below that
involves per share data for Acadiana, Triangle adjusted the data for the
dilutive effects of stock options using the treasury method.
In connection with rendering its opinion to Acadiana's board, Triangle
performed a variety of financial and comparative analyses, which are briefly
summarized below. Such a summary of those analyses does not purport
15
to be a complete description of the analyses performed by Triangle. Moreover,
Triangle believes that the analyses must be considered as a whole and that
selecting portions of the analyses and the factors considered, including
information presented in tabular form, without considering all of the analyses
and factors, could create an incomplete understanding of the process underlying
the analyses and, more importantly, a misleading or incomplete view of the
written opinion as to fairness from a financial point of view that is based on
those analyses. The preparation of a financial advisor's opinion is a complex
process involving subjective judgments and is not readily susceptible to
partial analyses or a summary description of such analyses. In its full
analysis, Triangle also included assumptions with respect to general economic,
financial market and other financial conditions. Furthermore, Triangle drew
from its past experience in similar transactions, as well as its experience in
the valuation of securities and its general knowledge of the banking industry
as a whole. Any estimates in Triangle's analyses are not necessarily indicative
of actual future results or values, which may significantly diverge more or
less favorably from those estimates. Estimates of company valuations do not
purport to be appraisals or to necessarily reflect the prices at which
companies or their respective securities actually may be sold. None of the
individual analyses performed by Triangle were assigned a greater significance
by Triangle than any other in forming its written opinion.
Accretion/Dilution Analysis: On the basis of financial projections
established by management, and estimates of on-going cost savings accruing to
the combined companies, as well as estimated one-time costs related to the
transaction, Triangle compared pro forma equivalent earnings per share, cash
earnings per share, book value, tangible book value and cash dividends to the
stand-alone projections of Acadiana and IBERIA. No assumptions were made
regarding revenue enhancements following the completion of the transaction. The
accretion/dilution analysis was based on the premise, for purposes of analysis
only, that shares of Acadiana common stock were to be exchanged 100% for shares
of IBERIA common stock, or alternatively stated, that any cash received by
Acadiana shareholders would be reinvested in IBERIA common stock at the market
price used to establish the exchange ratio, without regard to taxes and
brokerage fees.
The accretion/dilution analysis indicated, among other things, that, based
on the information taken into account for purposes of the analysis, the merger
could result in:
. Sixty-eight percent (68%) accretion to earnings per share and seventy-nine
percent (79%) accretion to cash earnings per share for Acadiana
shareholders in the first year of combined operations, increasing over the
period of the analysis;
. Two percent (2%) accretion to earnings per share and seven percent (7%)
accretion to cash earnings per share for IBERIA shareholders in the first
year of combined operations;
. A thirty-four percent (34%) increase in cash dividends for Acadiana
shareholders, assuming IBERIA maintains its current dividend policy;
. Ten percent (10%) accretion to book value and twenty-nine percent (29%)
dilution to tangible book value for Acadiana shareholders; and
. Nine percent (9%) accretion to book value and seven percent (7%) dilution
to tangible book value for IBERIA shareholders.
16
Contribution Analysis: Triangle compared the contribution of Acadiana to
the combined companies relative to the approximate ownership of the combined
companies. The analysis indicated that Acadiana shareholders would own
approximately 13.5% of the pro forma shares of IBERIA. Acadiana's approximate
contributions are listed below by category:
Acadiana
Contribution
------------
Assets............................................. 17.9%
Loans.............................................. 18.5%
Deposits........................................... 15.0%
Tangible equity.................................... 20.4%
Last twelve months earnings(1) without cost savings 12.3%
Projected year 1 earnings without cost savings..... 9.9%
Projected year 2 earnings without cost savings..... 10.0%
Projected year 1 earnings with cost savings........ 15.2%
Projected year 2 earnings with cost savings........ 18.1%
Pro Forma Ownership................................ 13.5%
-----
--------
(1) Twelve months ended June 30, 2002
Comparable Transaction Analysis: Triangle reviewed and compared financial
performance and pricing information for groups of bank and thrift merger
transactions announced in the twenty-four months ended September 18, 2002 that
it deemed pertinent to an analysis of the merger. Triangle did not include
every transaction that could be deemed to have occurred in the relevant
industries. The pricing ratios for the merger were compared to the median
ratios of (1) price to tangible book value, (2) price to last twelve months
reported earnings, (3) price to last twelve months core earnings, (4) tangible
book value premium to core deposits, and (5) premium to trading price, for each
of the following comparable transaction groups:
. all thrift acquisitions in the United States in the preceding 24 months,
referred to in the table below as "Last 24 Months";
. all thrift acquisitions announced in the preceding 90 days, referred to in
the table below as "Last 90 Days";
. all Louisiana thrift acquisitions, referred to in the table below as
"Louisiana Thrifts";
. all thrift acquisitions in the United States involving acquired thrifts
with assets of $200 million - $400 million, referred to in the table below
as "Assets $200-$400 Million";
. all thrift acquisitions in the United States involving acquired thrifts
with returns on average equity of 7%-10%, referred to in the table below
as "ROAE 7%-10%";
17
Triangle also selected eleven bank and thrift acquisitions announced since
September 2000 that Triangle deemed most comparable to Acadiana in terms of
asset size, tangible capital and profitability, referred to in the table below
as "Guideline Transactions";
Acquirer Target
-------- ------
United Community Bancorp, NC Community Bancshares, Inc., NC
Colonial BancGroup Inc., AL Palm Beach National Holding
Co., FL
Capital Bank Corporation, NC High Street Corporation, NC
Synovus Financial Community Financial Group,
Corporation, GA Inc., TN
MB Financial Inc., IL First Lincolnwood
Corporation, IL
Whitney Holding Corporation,
LA Redstone Financial, Inc., TX
Norway Bancorp, ME First Coastal Corporation, ME
Promistar Financial
Corporation, PA FNH Corporation, PA
NBT Bancorp Inc., NY First National Bancorp Inc.,
NY
Community Banks Inc., PA Glen Rock State Bank, PA
Financial Institutions Inc.,
NY Bath National Corporation, NY
The following table represents a summary analysis of the transactions deemed
comparable that were analyzed by Triangle based on the announced transaction
values:
Tangible
Price/ Price/ Price/ Book
Number Tangible LTM LTM Premium/ Premium/
of Book Reported Core Core Trading
Deals Value Earnings(1) Earnings(2) Deposits(3) Price
------ -------- ----------- ----------- ----------- --------
Last 24 Months................ 109 137% 19.5x 19.3x 7.0% 37%
Last 90 Days.................. 16 132% 24.0x 26.2x 8.7% 31%
Louisiana Thrifts............. 2 165% 18.3x 18.3x 8.1% 89%
Assets $200-$400 Million...... 20 144% 22.6x 22.8x 8.6% 44%
ROAE 7%-10%................... 14 132% 17.3x 15.6x 6.4% 47%
Guideline Transactions(4)..... 11 177% 22.6x 28.5x (5) 9.0% 41%
Acadiana(6)................... 186% 22.4x 23.5x 14.3% 66%
--------
(1) Last 12 months fully-diluted reported earnings per share.
(2) Last 12 months fully-diluted core earnings per share--excludes
non-recurring revenue and expenses.
(3) Premium over tangible book value as a percentage of core deposits--total
deposits less "jumbo" time deposits.
(4) Guideline Transactions are the eleven merger transactions listed above.
(5) Price to last twelve months core earnings was not available for nine of the
eleven Guideline Transactions; therefore the median shown may not be
indicative of the true price to core earnings for this group of
transactions.
(6) Acadiana pricing data based on per share consideration of
$39.38--fully-diluted using the treasury method-- assuming each share of
Acadiana common stock is exchanged for $7.88 of cash and $31.50 of IBERIA
common stock and the market price of IBERIA common stock is between $34.00
and $46.00 per share, all of which amounts are subject to adjustment.
The analysis indicated that the value of the proposed merger fell within the
range of multiples of trailing twelve months earnings represented by the groups
of transactions deemed comparable. The price to tangible book value, tangible
book value premium to core deposits and premium to trading price ratios for the
proposed merger were generally higher than the median ratios for the comparable
groups.
Discounted Cash Flow Analysis: Triangle prepared a discounted cash flow
analysis with regard to Acadiana's estimated acquisition values. This analysis
utilized a range of discount rates of 12% to 18% and a
18
range of earnings terminal multiples of 10.0x to 15.0x. The analyses resulted
in a range of present values of between $27.75 and $46.70 per share. This
analysis was based on assumptions used by Triangle in estimating Acadiana's
acquisition value, and is not necessarily indicative of actual values or actual
future results and does not purport to reflect the prices at which any
securities may trade at the present or at any time in the future. Triangle
noted that the discounted cash flow analysis was included because it is a
widely used valuation methodology, but that the results of the methodology are
not conclusive and are highly dependent upon the numerous assumptions that must
be made, including earnings growth rates, discount rates, terminal multiples
and cost savings.
Comparable Company Trading Analysis of IBERIA: Triangle reviewed and
compared stock market data and selected pricing multiples for IBERIA as of
September 18, 2002 with corresponding median multiples for publicly-traded
banks possessing financial and performance characteristics deemed similar to
IBERIA. Triangle did not include every company that could be deemed to be a
participant in the same industry. The selected comparable publicly-traded
companies differ in size, profitability and growth outlook and thus provide
imprecise valuation indications. In addition, market-based valuation relies on
public information and thus may not reflect undisclosed company-specific
opportunities or capabilities. The comparison banks were grouped according to
the criteria listed below:
Price/ Price/
LTM Price/ LTM Price/ Tangible
Number of Reported Core 2002E Book Dividend
Companies Earnings Earnings(1) Earnings Value Yield
--------- -------- ----------- -------- -------- --------
All U.S. Banks.......... 691 14.5x 14.6x 13.5x 168% 2.6%
Louisiana Banks......... 6 13.8x 13.4x 12.7x 176% 2.8%
Assets $1-$2 billion.... 74 14.8x 14.9x 13.9x 202% 2.4%
Return on Equity 14%-18% 115 13.7x 13.9x 13.4x 163% 2.7%
Guideline Companies(2).. 10 15.0x 15.2x 13.9x 203% 2.3%
IBERIA(3)............... 14.5x 14.7x 13.2x 213% 1.8%
--------
(1) Core earnings exclude non-recurring revenue and expenses, tax-adjusted at a
35% rate.
(2) Consists of ten actively-traded banks of similar asset size, tangible
capital levels, and return on equity as IBERIA: Commonwealth Bancorp, PA;
First Bancorp, NC; First National Corporation, SC; Hills Bancorp, IA;
OceanFirst Financial Corp, NJ; PennFed Financial Services, NJ; Second
Bancorp, OH; State Bancorp, NY; Union Bankshares, VA; and West Coast
Bancorp, OR.
(3) At or for the twelve months ended June 30, 2002, unless otherwise noted.
The analysis indicated that IBIERA common stock traded at similar price to
earnings multiples as the market for bank stocks taken as a whole, and IBERIA
common stock traded at slightly lower price to earnings multiples than the
median multiples for the ten guideline companies. However, the analysis
indicated that IBERIA common stock was trading at a slight premium on price to
tangible book value compared to the median multiples exhibited by the
comparable groups. Due to a lower dividend payout ratio, IBERIA common stock
had a lower dividend yield than the comparable groups.
19
Comparable Company Trading Analysis of Acadiana: Triangle reviewed and
compared stock market data and selected pricing multiples for Acadiana as of
September 18, 2002 with corresponding median multiples for publicly-traded
thrift institutions possessing financial and performance characteristics deemed
similar to Acadiana. Triangle did not include every company that could be
deemed to be a participant in the same industry. The selected comparable
publicly-traded companies differ in size, profitability and growth outlook and
thus provide imprecise valuation indications. In addition, market-based
valuation relies on public information and thus may not reflect undisclosed
company-specific opportunities or capabilities. The comparison companies were
grouped according to the criteria listed below:
Price/ Price/ Price/
Number LTM LTM Price/ Tangible
of Reported Core 2002E Book Dividend
Companies Earnings Earnings(1) Earnings Value Yield
--------- -------- ----------- -------- -------- --------
All U.S. Thrifts........ 315 13.7x 14.0x 12.6x 119% 2.5%
Louisiana Thrifts....... 9 11.6x 14.9x 9.0x 80% 2.1%
Assets $200-$400 million 69 13.4x 13.5x 12.5x 110% 2.5%
Return on Equity 7%-10%. 73 13.2x 14.0x 13.9x 115% 2.5%
Guideline Companies(2).. 8 13.6x 14.8x 11.6x (3) 108% 2.6%
Acadiana(4)............. 11.6x 12.2x NA (5) 100% 2.5%
--------
(1) Core earnings exclude non-recurring revenue and expenses, tax-adjusted at a
35% rate.
(2) Consists of eight traded banks and thrifts of similar asset size, tangible
capital levels, and return on equity as Acadiana: ChoiceOne Financial
Services, MI; Community Central Bank Corp., MI; EvergreenBancorp, WA; First
Bancshares, MO; HFB Financial Corp., KY; Patapsco Bancorp, MD; Peoples
National Bank, VA; Slades Ferry Bancorp, MA.
(3) Only one of the Guideline Companies had a price to 2002E earnings ratio;
therefore the median shown may not be indicative of the true price to core
earnings for this group of companies.
(4) At or for the twelve months ended June 30, 2002, unless otherwise noted.
(5) Not available--there are no published earnings estimates for Acadiana for
2002.
The analysis indicated that Acadiana common stock generally traded at lower
price to earnings multiples than the median multiples for the comparison groups
shown in the table above. In addition, Acadiana common stock was trading at a
discount on a price to tangible book value basis compared to all of the
comparison groups shown, with the exception of the Louisiana thrift median.
Acadiana common stock had a dividend yield similar to the comparable groups. It
should be noted that Acadiana common stock generally trades infrequently and
there is relatively low trading volume in the stock. The ratios shown for
Acadiana could be influenced by the relative lack of liquidity in the stock.
No company used as a comparison in the above analyses is identical to
Acadiana, IBERIA or the combined entity and no other transaction is identical
to the merger. Accordingly, an analysis of the results of the foregoing is not
purely mathematical; rather, such analyses involve complex considerations and
judgments concerning differences in financial, market and operating
characteristics of the companies and other factors that could affect the public
trading value of the companies to which Acadiana, IBERIA and the combined
entity were compared.
In connection with the delivery of its written opinion dated as of the date
of this document,Triangle performed procedures to update, as it deemed
necessary, some of the analyses described above and reviewed the assumptions on
which the analyses described above were based and the factors considered in
connection with those analyses. Triangle did not perform any analyses in
addition to those described above in updating its written opinion.
Acadiana has agreed to pay Triangle a fee equal to a percentage of the
merger consideration as compensation for financial advisory services rendered
in connection with the proposed merger. Assuming merger
20
consideration of $39.38 per share of Acadiana common stock, which includes
$7.88 of cash and $31.50 of IBERIA common stock as described above, Triangle's
total fee would be approximately $557,000. Triangle has received $50,000 in
fees to date, a portion of which was contingent upon the rendering of
Triangle's written opinion as to fairness from a financial point of view of the
merger consideration proposed to be paid to the holders of Acadiana common
stock. The remainder is payable upon consummation of the proposed merger. The
Acadiana board was aware of this fee structure and took it into account in
considering Triangle's fairness opinion and in approving the merger. In
addition, Acadiana has agreed to reimburse Triangle for all reasonable expenses
incurred by it on Acadiana's behalf, and to indemnify Triangle against some
liabilities, including liabilities which may arise under the federal securities
laws.
As noted above, the discussion in this section is merely a summary of the
analyses and examinations that Triangle considered to be material to its
opinion. It is not a comprehensive description of all analyses and examinations
actually conducted by Triangle. The fact that any specific analysis has been
referred to in the summary above is not meant to indicate that the analysis was
given greater weight than any other analysis. Accordingly, the ranges of
valuations resulting from any particular analysis described above should not be
taken to be Triangle's view of the actual value of Acadiana.
In performing its analyses, Triangle made numerous assumptions with respect
to industry performance, general business and economic conditions and other
matters, many of which are beyond the control of Acadiana and IBERIA. The
analyses performed by Triangle are not necessarily indicative of actual values
or actual future results, which may be significantly more or less favorable
than those suggested by those analyses. The analyses do not purport to be
appraisals or to reflect the prices at which a company might actually be sold
or the prices at which any securities have traded or may trade at any time in
the future. Accordingly, those analyses and estimates are inherently subject to
uncertainty, being based upon numerous factors or events beyond the control of
the parties or their respective advisors, and Triangle does not assume any
responsibility if future results are materially different from those projected.
As described above, Triangle's opinion and presentation to the Acadiana board
were among the many factors taken into consideration by the Acadiana board in
making its determination to approve, and to recommend that Acadiana's
stockholders approve, the merger.
21
Conversion of Acadiana Common Stock
On the day the merger becomes effective each share of Acadiana common stock
outstanding will be converted into the right to receive $7.88 in cash plus a
number of shares of IBERIA common stock with a value of $31.50, based upon the
average closing price during the first ten trading days of the month in which
the merger is completed, provided, however, that not less than 0.6848 shares
nor more than 0.9265 shares of IBERIA common stock will be issued for each
share of Acadiana common stock exchanged in the merger. If the average closing
price of IBERIA during the ten day measurement period is less than $46.00 per
share but more than $34.00 per share, the number of shares of IBERIA common
stock which will be issued in exchange for each share of Acadiana common stock
will be determined by an exchange ratio calculated by dividing $31.50 by the
average closing price of IBERIA common stock. The table below illustrates the
operation of the exchange ratio at various selected average closing prices.
If the average closing Then the exchange ratio
price is: will be:
---------------------- -----------------------
$46.00 or more 0.6848
45.00 0.7000
44.00 0.7159
43.00 0.7326
42.00 0.7500
41.00 0.7683
40.00 0.7875
39.00 0.8077
38.00 0.8289
37.00 0.8514
36.00 0.8750
35.00 0.9000
34.00 or less 0.9265
The amount of cash and/or stock that you receive in the merger may be
adjusted for various matters as provided in the merger agreement, which are
described below.
. The total amount of shares of IBERIA issued to Acadiana shareholders in
the merger cannot exceed 19.9% of the outstanding shares of IBERIA
immediately prior to the merger. Rather than exceed the 19.9% threshold,
the number of shares of IBERIA which would be issued under the exchange
ratio will be reduced and the $7.88 per share cash consideration will be
increased proportionately. IBERIA has indicated that it does not
anticipate that there will be any adjustment as a result of this
provision. However, the potential application of this adjustment will
depend primarily on the number of outstanding shares of Acadiana common
stock, which could increase if options are exercised, and the number of
outstanding shares of IBERIA common stock, which could decrease in the
event of stock repurchases by IBERIA. IBERIA recently repurchased 48,700
of its shares of common stock pursuant to a previously announced
repurchase program and has announced that it plans to purchase up to
130,000 additional shares. If IBERIA repurchased the entire 130,000
additional shares before the merger is completed and all presently
outstanding options to acquire Acadiana shares were exercised, then a
maximum of 0.7901 shares of IBERIA common stock would be issued for each
share of Acadiana common stock rather than 0.9265 shares. In such event,
if you assume that IBERIA common stock is trading at $34.00 per share or
less and there are no other adjustments, then you would receive $12.52 in
cash plus 0.7901 shares of IBERIA common stock for each of your shares of
Acadiana common stock.
. If the average closing price of IBERIA stock is less than $30.00, Acadiana
has the right to terminate the merger agreement unless IBERIA elects to
increase the amount of cash to be issued to Acadiana shareholders in the
merger.
22
. The total cash consideration to be paid to Acadiana shareholders may be
reduced, in which event, the $7.88 per share cash consideration will be
reduced on a proportional basis, in the event that Acadiana's legal
expenses incurred in connection with the merger exceed $180,000. Acadiana
has indicated that it does not anticipate that there will be any
adjustment as a result of this provision.
Shareholders who perfect dissenters' rights will not receive IBERIA common
stock but instead will be entitled to receive the "fair cash value" of their
shares as determined under Section 131 of the Louisiana Business Corporation
Law. See, "Dissenter's Rights" on page 32.
Instead of issuing any fractional shares of IBERIA common stock, each
shareholder of Acadiana who would otherwise be entitled thereto will receive a
cash payment, without interest, equal to such fractional share multiplied by
the market value of the fraction.
Effective Date
An Agreement of Merger will be recorded with the Louisiana Secretary of
State as soon as practicable after shareholder and regulatory approval of the
merger agreement is obtained and all other conditions to the completion of the
merger have been satisfied or waived. The merger will be effective when the
agreement is filed by the Louisiana Secretary of State.
Procedure for Exchanging Certificates
On the effective date of the merger, each Acadiana shareholder will cease to
have any rights as a shareholder of Acadiana, and his sole rights will be to
receive cash and IBERIA common stock into which his shares of Acadiana common
stock have been converted pursuant to the merger agreement, except for any
Acadiana shareholder who exercises statutory dissenters' rights.
Promptly after consummation of the merger agreement, a letter of
transmittal, together with instructions for the exchange of certificates
representing shares of Acadiana common stock for cash and certificates
representing shares of IBERIA common stock, will be mailed to each person who
was a shareholder of record of Acadiana on the effective date of the merger.
Shareholders are requested not to send in their Acadiana common stock
certificates until they have received a letter of transmittal and further
written instructions. IBERIA common stock certificates and cash payments will
be sent as promptly as practicable after receipt of a properly completed letter
of transmittal accompanied by the appropriate Acadiana common stock
certificates.
IBERIA, at its option, may decline to pay former shareholders of Acadiana
who become holders of IBERIA common stock pursuant to the merger agreement any
dividends or other distributions that may have become payable to holders of
record of IBERIA common stock following the effective date until they have
surrendered their certificates for Acadiana common stock. Any dividends not
paid after one year from the date they first became payable will revert in full
ownership to IBERIA, and IBERIA will have no further obligation to pay such
dividends.
Treatment of Acadiana Stock Options
At the effective time of the merger, each option to purchase Acadiana common
stock issued pursuant to Acadiana's stock option plan, whether or not vested or
exercisable before the merger is completed, will be canceled and the holder of
the unexercised stock option will be entitled to receive a cash payment equal
to the value of the consideration received by Acadiana shareholders in the
merger for a share of Acadiana common stock, less the exercise price per share
of the stock option, multiplied by the number of shares of Acadiana common
stock subject to the stock option.
23
Conditions to the Merger
The respective obligations of Acadiana and IBERIA to complete the merger are
subject to the satisfaction or waiver of the following conditions specified in
the merger agreement:
. from the date of the merger agreement to the closing of the merger, the
representations and warranties set forth in the merger agreement remain
true and correct, except for any representation or warranty made as of a
specified date, which was true and correct as of such date or except as
contemplated or permitted by the merger agreement;
. the performance of all agreements and covenants required by the merger
agreement prior to the closing of the merger;
. the delivery of certain certificates of the chief executive officers and
chief financial officers of Acadiana and IBERIA;
. approval of the merger agreement by the shareholders of Acadiana;
. the receipt of all required regulatory approvals or authorizations,
provided that none of such approvals contain any non-standard term or
condition which would have material adverse effect, subject to certain
exceptions;
. the absence of any order, decree or injunction which enjoins or prohibits
completion of any of the transactions contemplated by the merger agreement;
. the receipt of customary letters from each of Acadiana's and IBERIA's
independent public accountants prior to the proxy statement mailing and
the closing;
. the receipt of a tax opinion substantially to the effect that:
. for federal income tax purposes, the merger will be treated as a
reorganization within the meaning of Section 368(a)(1)(A) of the
Internal Revenue Code;
. neither Acadiana nor IBERIA will recognize gain or loss as a result of
the merger;
. shareholders of Acadiana will recognize gain, but not loss, to the
extent of the lesser of (1) the excess, if any, of the sum of the
aggregate fair market value of the IBERIA common stock received plus
cash received over the aggregate tax basis of the Acadiana common stock
exchanged and (2) the amount of cash received;
. the aggregate tax basis of the IBERIA common stock received by Acadiana
shareholders will equal the aggregate tax basis in the Acadiana common
stock exchanged less cash received, including cash for fractional
shares, and increased by taxable gain recognized in the merger; and
. the holding period for the IBERIA common stock received will include the
holding period of the Acadiana common stock exchanged provided such
shares were held as capital assets at the time of closing of the merger.
. the registration statement of IBERIA of which this document is a part must
have become effective under the Securities Act of 1933, and no stop order
suspending the effectiveness of the registration statement shall have been
issued and no proceedings for such purpose shall be pending before or
threatened by the Securities and Exchange Commission;
. the execution of all documents and all such other action being taken as is
necessary to effectuate the merger, along with irrevocable instructions to
file the merger agreement with the Secretary of State of the State of
Louisiana; and
. the receipt of standard legal opinions from counsel for Acadiana and
IBERIA.
There can be no assurance that the conditions to consummation of the merger
will be satisfied or waived. The merger will become effective when the
certificate of merger is filed with the Secretary of State of the State of
Louisiana. It is currently anticipated that the effective time of the merger
will occur during the first quarter of 2003.
24
In addition to Acadiana shareholder approval, consummation of the Merger
will require the approval of the Board of Governors of the Federal Reserve
System. IBERIA has filed an application seeking the required approval and
expects to receive it by February 7, 2003; however, there can be no assurance
that the approval will be obtained by that time or at all.
The obligations of the parties to consummate the merger are also subject to
customary conditions for transactions of this sort and, in addition, to the
receipt of an opinion of Castaing, Hussey & Lolan, LLC as to certain tax
aspects of the merger.
The companies intend to complete the merger as soon as practicable after all
of the conditions to the merger agreement have been met or waived; however,
there can be no assurance that the conditions will be satisfied.
Conduct of Business Prior to the Effective Date
Acadiana has agreed that until the earlier of the effective date or the
termination of the merger agreement, it will conduct its business in the
ordinary course unless it receives prior written consent of the chief executive
officer or other duly authorized officer of IBERIA.
Acadiana has also agreed that until the earlier of the effective date or the
termination of the merger agreement, it will not declare or pay any dividend or
other distribution to its shareholders except regular quarterly cash dividends
on the shares of Acadiana common stock, at a rate not in excess of $.15 per
share.
Acadiana has further agreed that neither it nor LBA Savings Bank will,
except as may, in the written opinion of its counsel promptly delivered to
IBERIA, be required by fiduciary duty, solicit, initiate, encourage or
knowingly facilitate any inquiry or the making of any proposal relating to an
acquisition transaction or a potential acquisition transaction involving it.
Acadiana will use its reasonable best efforts to inform its directors,
officers, key employees, agents, and other representatives of the foregoing
prohibitions.
Conduct of Business Prior to the Completion of the Merger and Certain Covenants
The merger agreement provides that until the effective time of the merger,
except as otherwise consented to by IBERIA in writing, Acadiana shall not:
. amend its articles of incorporation or bylaws;
. permit any material lien, charge or encumbrance to be imposed on any share
of stock held by Acadiana or any subsidiary of Acadiana;
. repurchase, redeem, or otherwise acquire or exchange, directly or
indirectly, any shares of Acadiana capital stock or any securities
convertible into any shares of Acadiana capital stock, except as permitted
or contemplated by the merger agreement;
. acquire direct or indirect control over any corporation, association, firm
or organization, except as contemplated in the merger agreement or
previously disclosed;
. sell or otherwise dispose of any shares of Acadiana common stock or any
substantial part of its assets or any other assets other than in the
ordinary course of business, except as previously disclosed or pursuant to
Acadiana's stock option plan;
. incur any additional material debt obligation or other material obligation
for borrowed money other than in the ordinary course of business
consistent with past practices or except as previously disclosed;
. with certain exceptions, grant any increase in compensation or benefits to
Acadiana's officers or employees, pay any bonus not previously
contemplated or disclosed, enter into any severance agreements with any of
its directors or officers, grant any increase in fees or other increases
in compensation or other benefits to any of its present or former
directors, or effect any change in retirement benefits for any class of
its employees or officers that would increase the retirement benefit
liabilities Acadiana;
25
. amend any existing employment, severance or similar contract or enter into
any new contract with any person except as required by law, contemplated
by the merger agreement or previously disclosed; or
. adopt any new employee benefit plan or make any material change in or to
any existing employee benefit plan other than as previously disclosed or
required by law or in the opinion of counsel, is necessary or advisable to
maintain the tax qualified status of any such plan.
The merger agreement further provides that, except as otherwise contemplated
by the merger agreement, previously disclosed or consented to by either
Acadiana or IBERIA in writing, each party shall operate its business only in
the ordinary course of business consistent with past practices, to preserve
intact its business organizations and assets and maintain its rights and
franchises. In addition, both Acadiana and IBERIA have agreed to take no action
which would adversely affect either Company's ability to obtain any necessary
regulatory approvals or its ability to perform its obligations under the merger
agreement and the stock option agreement, or that would cause the
representations or warranties contained in the merger agreement not to be true
prior to the completion of the merger.
Regulatory Approvals
Consummation of the merger is subject to prior receipt of all required
approvals and consents of the merger by all applicable federal and state
regulatory authorities.
Federal Reserve Board. The merger is subject to the prior approval of or
waiver from the Federal Reserve Board under Section 3 of the Bank Holding
Company Act of 1956, as amended. Pursuant to the Bank Holding Company Act, the
Federal Reserve Board may not approve the merger if:
. such transaction would result in a monopoly or would be in furtherance of
any combination or conspiracy to monopolize or attempt to monopolize the
business of banking in any part of the United States; or
. the effect of such transaction, in any section of the country, may be to
substantially lessen competition, or tend to create a monopoly, or in any
manner restrain trade,
unless in each case the Federal Reserve Board finds that the anticompetitive
effects of the proposed transaction are clearly outweighed in the public
interest by the probable effect of the transaction in meeting the convenience
and needs of the communities to be served. In every case, the Federal Reserve
Board is required to consider the financial and managerial resources and future
prospects of the bank holding company or companies and the banks concerned and
the convenience and needs of the communities to be served. Under the Community
Reinvestment Act of 1977, the Federal Reserve Board also must take into account
the record of performance of each participating bank holding company in meeting
the credit needs of the entire community, including low and moderate-income
neighborhoods, served by each bank holding company and its subsidiaries. In
addition, the Bank Holding Company Act requires that the Federal Reserve Board
take into account the record of compliance of each bank holding company with
applicable state community reinvestment laws. Applicable regulations require
publication of notice of an application for approval of the merger and an
opportunity for the public to comment on the application in writing and to
request a hearing.
Any transaction approved by the Federal Reserve Board may not be completed
until 30 days after such approval, during which time the U.S. Department of
Justice may challenge such transaction on antitrust grounds and seek divesture
of certain assets and liabilities. With the approval of the Federal Reserve
Board and the U.S. Department of Justice, the waiting period may be reduced to
15 days.
Representations and Warranties of the Parties
Pursuant to the merger agreement, Acadiana and IBERIA made certain customary
representations and warranties relating to their respective companies,
subsidiaries, businesses and matters related to the merger. The
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representations and warranties generally must remain accurate through the
completion of the merger unless the fact or facts that caused a breach of a
representation and warranty has not had or is not reasonably likely to have a
material adverse effect on the party making the representation and warranty.
See "Conditions to the Merger" beginning on page 24.
Waiver, Amendment and Termination
The parties may waive in writing any of the conditions to their respective
obligations to consummate the merger agreement other than the receipt of
necessary regulatory and shareholder approvals. The merger agreement, including
all related agreements, may also be amended or modified at any time, before or
after its approval by the shareholders of Acadiana, by mutual agreement, except
that any amendment made after shareholder approval may not alter the amount or
type of shares into which Acadiana common stock will be converted or alter any
term or condition of the merger agreement in a manner that would adversely
affect any shareholder of IBERIA or Acadiana, without the additional approval
of shareholders.
The merger agreement may be terminated at any time prior to the effective
date by mutual consent, or by either of the companies if:
. there is a material breach by the other company of any representation,
warranty or covenant by it contained in the merger agreement which cannot
be cured by the earlier of 30 days after written notice of such breach,
. all conditions to completing the merger have not been met or waived,
cannot be met, or the merger has not occurred, by March 31, 2003, although
that date may be extended to June 30, 2003 under certain circumstances
. any person or group acquires beneficial ownership of 25% or more of the
common stock of the other company;
. required regulatory applications are denied or the shareholders of
Acadiana fail to approve the merger agreement by the requisite vote at the
meeting; or
. the other company has experienced a material adverse effect, as defined in
the merger agreement, that is uncured after 30 days notice.
The board of directors of Acadiana may terminate the merger agreement if all
or a portion of the shares of Acadiana common stock issued pursuant to the
exercise of the stock option granted by the stock option agreement would not be
cancelled by virtue of the merger. The board of directors of IBERIA may
terminate the merger agreement if Acadiana's board of directors resolves to
withdraw, modify or change its recommendation to Acadiana's shareholders of the
merger agreement, or recommends any acquisition of Acadiana other than the
merger, and Acadiana may terminate the merger agreement within 30 days of
notice to it by IBERIA that its common stock has been converted into or
exchanged for securities of another issuer.
Interests of Certain Persons
Indemnification and Insurance. IBERIA has agreed to indemnify and hold
harmless Acadiana and LBA Savings Bank, and each of their respective directors
and officers, and each controlling person of Acadiana within the meaning of the
Securities Act of 1933, against any claims, and any related losses, that arise
out of or are based upon an untrue statement or omission of a material fact
made in this proxy statement and prospectus or the registration statement.
IBERIA will reimburse each such person promptly as incurred for legal and other
expenses reasonably incurred in connection with investigating or defending any
such claims; provided, that IBERIA will not be liable to the extent that any
such claim arises out of or is based upon any such untrue statement or omission
made in reliance on information furnished to IBERIA by Acadiana or LBA Savings
Bank or, with respect to any indemnified person, by that person.
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Acadiana may purchase, if available, a continuation of its officers' and
directors' liability insurance in respect of acts or omissions of officers and
directors of Acadiana and LBA Savings Bank occurring prior to the effective
date, including but not limited to the transactions contemplated by the merger
agreement, covering each such person currently covered by Acadiana's officers'
and directors' liability insurance policy, or who becomes covered by such
policy prior to the effective date; provided that the continuation be for no
longer than three years and the premiums are not in excess of $50,000.
Consulting Agreement. IBERIA has entered into a Consulting Agreement with
Gerald G. Reaux, Jr. The agreement will have a one year term beginning on the
effective date of the merger, provide for a $10,000 per month consulting fee,
and restrict Mr. Reaux from competing with IBERIA for one year in the Parishes
of Lafayette, Iberia, Acadia, Vermillion and St. Martin.
Severance Payments. IBERIA has agreed to fulfill Acadiana's obligations
under seven employment and severance contracts with certain of its officers.
These seven contracts are with Gerald G. Reaux, Jr., Emile E. Soulier, III,
Allen Wayne Bares, Thomas F. Debaillon, Gregory E. King, James J. Montelaro,
and Mary Anne Bertrand. Payments due upon the merger under these agreements
range from $116,000 to $682,992. In addition, Mr. Lawrence Ganderdorff's
consulting agreement will be terminated for a payment of $48,000.
Stock Options. The merger agreement provides that unexercised options to
purchase Acadiana's common stock that are outstanding on the effective date
will be cancelled. As consideration, option holders will receive a cash payment
equal to the amount the option-holder would have received in the merger for the
shares of Acadiana common stock covered by the options, less the exercise price.
Directors' and Officers' Commitments. Each Acadiana director and executive
officer has agreed, solely in his or her capacity as an owner of shares of
Acadiana common stock and not in his or her capacity as a director or officer
of Acadiana:
. to vote in favor of the merger agreement and against any other proposal
that would prevent or impede the merger, unless compliance with this
provision would be a breach of fiduciary duty as a director or officer of
Acadiana,
. not to transfer any of his or her Acadiana common stock, or grant any
proxy or other rights with respect thereto not approved by IBERIA, except
for transfers by operation of law or transfers in connection with which
the transferee agrees to be bound by the agreement.
Employee Benefits. At or prior to the effective date, all contributions to
be made to the Acadiana Employee Stock Ownership Plan and LBA Savings Bank's
401(k) Plan on behalf of participants in such plans for periods prior to the
effective date will be made, and all participants in such plans will at the
effective date have a fully vested and nonforfeitable interest in their account
balances. No contributions will be made to such plans for periods after the
effective date. As soon as possible after the effective date, Acadiana will
take all actions that may be necessary or required to terminate the ESOP and
make available to participants distributions from the ESOP in accordance with
the terms of the ESOP and applicable law, and to the extent that the ESOP does
not provide for distributions to a participant prior to the participant's
termination of employment, IBERIA will amend the ESOP to permit distributions
to the extent permitted by law.
To the extent applicable, employees of Acadiana and LBA Savings Bank will be
given credit under each employee benefit plan, policy, program and arrangement
maintained by IBERIA after the effective date for their service with Acadiana
or LBA Savings Bank prior to the effective date for all purposes other than
benefit accrual under a defined benefit plan (as defined in section 3(35) of
the Employee Retirement Income Security Act), including eligibility to
participate, vesting, satisfying any waiting periods, evidence of insurability
requirements, seniority or the application of any pre-existing condition
limitations.
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Expenses
The merger agreement provides generally that expenses incurred in connection
with the merger agreement and the transactions contemplated thereby will be
borne by the party that has incurred them. However, a party must pay all of the
costs and expenses incurred by the other party in connection with the merger
agreement, including fees and expenses of the reimbursed party's financial or
other consultants, investment bankers, accountants and counsel, up to $250,000
if:
. the merger agreement is terminated by reason of a material breach by the
expense paying party,
. the reimbursed party was the party who terminated it, and
. the expense paying party is, at the time of the termination, not also
entitled to terminate the merger agreement by reason of a material breach
by the reimbursed party; or
. a purchase event, as defined below under the caption "The Stock Option
Agreement", occurs with respect to the stock option agreement if Acadiana
is the expense paying party and the merger has not been, or thereafter is
not, consummated for any reason other than a termination because of a
material breach by the reimbursed party.
Status Under Federal Securities Laws; Restrictions on Resales
The shares of IBERIA common stock to be issued pursuant to the merger
agreement have been registered under the Securities Act of 1933, allowing those
shares to be freely traded without restriction by persons who will not be
"affiliates" of IBERIA or who were not "affiliates" of Acadiana, as that term
is defined in Rule 405 under the Securities Act.
Directors and certain officers of Acadiana may be deemed to be "affiliates"
of Acadiana. These people will not be able to resell the IBERIA common stock
received by them unless such stock is registered for resale under the
Securities Act or an exemption from the registration requirements of the
Securities Act is available. All affiliates have entered into agreements not to
sell shares of IBERIA common stock received by them in violation of the
Securities Act and the rules and regulations thereunder.
THE STOCK OPTION AGREEMENT
As an inducement to IBERIA to enter into the merger agreement, Acadiana
granted an option to IBERIA to acquire Acadiana common stock. One effect of the
stock option agreement is to increase the likelihood that the merger will be
consummated by making it more difficult and more expensive for another party to
obtain control of or acquire Acadiana. The following description does not
purport to be complete.
The stock option agreement provides for the purchase by IBERIA of up to
60,827 shares of Acadiana common stock at an exercise price of $23.76 per
share, subject to adjustment, payable in cash. The option shares, if issued,
would represent approximately 4.9% of the Acadiana common stock outstanding.
The number of option shares will be increased to the extent that additional
shares of Acadiana common stock are issued or otherwise become outstanding,
otherwise than pursuant to an exercise of the option, such that, after such
issuance, the number of option shares will continue to equal 4.9% of the
Acadiana common stock then outstanding without giving any effect to the
issuance of any Acadiana common stock subject to the option. The number of
shares of Acadiana common stock subject to the option, and the applicable
exercise price per option share, also will be appropriately adjusted in the
event of any stock dividends, split-ups, mergers, recapitalizations,
combinations, subdivisions, conversions, exchanges of shares, or the like,
relating to Acadiana.
Unless IBERIA shall have breached in any material respect any covenant or
agreement contained in the merger agreement and it has not been cured after
notice from Acadiana, IBKC may exercise the option, in whole
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or in part, subject to regulatory approval, at any time after a purchase event,
as defined below, shall have occurred prior to termination of the option. A
"purchase event" is the occurrence of any of the following:
. any person, other than IBERIA, shall have commenced a bona fide tender or
exchange offer to purchase shares of Acadiana common stock such that upon
consummation of such offer such person would own or control 20% or more of
the outstanding shares of Acadiana common stock;
. Acadiana or LBA Savings Bank, without having received IBERIA's prior
written consent, shall have entered into an agreement with any person,
other than IBERIA, or any person other than IBERIA shall have filed an
application or notice with the Federal Reserve Board or any other federal
or state regulatory agency for clearance or approval to:
. merge or consolidate, or enter into any similar transaction with
Acadiana or LBA Savings Bank,
. purchase, lease, or otherwise acquire any substantial portion of the
assets of Acadiana or LBA Savings Bank, or
. purchase or otherwise acquire by way of merger, consolidation, share
exchange, or any similar transaction, securities representing 20% or
more of the voting power of Acadiana or LBA Savings Bank;
. any person, other than IBERIA, any IBERIA subsidiary, or LBA Savings Bank
in a fiduciary capacity, shall have acquired beneficial ownership or the
right to acquire beneficial ownership of 20% or more of the outstanding
shares of Acadiana common stock or common stock of LBA Savings Bank,
excluding shares beneficially owned prior to September 22, 2002;
. any person, other than IBERIA or any IBERIA subsidiary, shall have made a
bona fide proposal to Acadiana by public announcement or written
communication that is or becomes the subject of public disclosure to
. acquire Acadiana or LBA Savings Bank by merger, consolidation, share
exchange, purchase of all or substantially all of its assets or any
other similar transaction or
. make an offer described in clauses (a) or (b), above; or
. Any person shall have solicited proxies in a proxy solicitation subject to
Regulation 14A under the Securities Exchange Act of 1934 in opposition to
approval of the merger agreement by Acadiana's shareholders.
Upon the occurrence of a purchase event that occurs prior to the termination
of the option, IBERIA may demand, while the option is exercisable, that the
option and the related option shares be registered under the Securities Act at
Acadiana's expense. Upon receipt of such notice, Acadiana must promptly effect
such registration, subject to certain exceptions. IBERIA is entitled to a
second such registration at IBERIA's expense.
FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the opinion of Castaing, Hussey & Lolan, LLC
which the companies have received concerning the material federal income tax
consequences to holders of Acadiana common stock resulting from the merger
agreement. Consummation of the merger is conditioned upon receipt by the
companies of such opinion dated the date set for consummation of the merger
agreement. The following is based upon applicable federal law and judicial and
administrative interpretations on the date hereof, any of which is subject to
change at any time:
. The merger qualifies as a reorganization under Section 368(a)(1)(A) of the
Internal Revenue Code, and Acadiana and IBERIA each will be a "party to a
reorganization" within the meaning of Section 368(b) of the Code.
. No gain or loss will be recognized by Acadiana or IBERIA as a result of
the merger.
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. a shareholder of Acadiana who receives both IBERIA common stock and cash
consideration in exchange for all of his or her shares of Acadiana common
stock generally will recognize gain, but not loss, to the extent of the
lesser of:
. the excess, if any, of
. the sum of the aggregate fair market value of the cash and IBERIA
common stock received over
. the shareholder's tax basis in Acadiana common stock; and
. the amount of cash received;
. Any such gain will be long-term capital gain (provided such shares of
Acadiana common stock were held as capital assets at the effective time
of the Merger) if the shares of Acadiana common stock exchanged were
held for more than one year, unless the receipt of cash has the effect
of a distribution of a dividend under the provisions of the Code, in
which case gain will be treated as a dividend to the extent of such
shareholder's ratable share of the undistributed accumulated earnings
and profits of Acadiana.
. the aggregated tax basis of the IBERIA common stock received by
shareholders of Acadiana who exchange all of their Acadiana common stock
in the merger will equal such shareholder's aggregate tax basis in the
shares of Acadiana common stock being exchanged, reduced by any amount
allocable to a fractioned share interest of IBERIA common stock for which
cash is received and by the amount of any cash consideration received, and
increased by the amount of taxable gain, if any recognized by such
shareholder in the merger,
. the holding period of the shares of IBERIA common stock received in the
merger will include the period during which the shares of Acadiana common
stock surrendered in exchange therefor were held, provided such shares of
Acadiana common stock were held as capital assets at the effective time of
the merger.
. for federal income tax purposes, cash received by a holder of Acadiana
common stock in lieu of a fractional share interest in IBERIA common stock
will be treated as received in redemption of a fractional share interest,
and gain or loss will be recognized for federal income tax purposes
measured by the difference between the amount of cash received and the
portion of the basis of the share of Acadiana common stock allocable to
such fractional share interest, if the deemed redemption meaningfully
reduces the Acadiana shareholder's interest in IBERIA, taking into account
the constructive ownership rules of the Code. A common shareholder that
owns an extremely small percentage of Acadiana common stock, exercises no
control over the affairs of IBERIA or Acadiana and does not actually or
constructively own any shares of IBERIA stock other than those received in
the Merger, will be treated as experiencing a meaningful reduction in
interest.
The opinion of Castaing, Hussey & Lolan, LLC is not binding on the Internal
Revenue Service, which could take positions contrary to the conclusions in such
opinion.
AS A RESULT OF THE COMPLEXITY OF THE TAX LAWS, AND BECAUSE THE TAX
CONSEQUENCES TO ANY PARTICULAR SHAREHOLDER MAY BE AFFECTED BY MATTERS NOT
DISCUSSED HEREIN, IT IS RECOMMENDED THAT EACH SHAREHOLDER CONSULT HIS PERSONAL
TAX ADVISOR CONCERNING THE APPLICABLE FEDERAL, STATE AND LOCAL INCOME TAX
CONSEQUENCES OF THE MERGER AGREEMENT.
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DISSENTERS' RIGHTS
Unless the merger agreement is approved by the holders of at least 80% of
its outstanding common stock, Section 131 of the LBCL allows a shareholder of
Acadiana who objects to the merger agreement and who complies with the
provisions of that section to dissent from the merger agreement and to have
paid to him in cash the fair cash value of his shares of Acadiana common stock
as of the day before the meeting, as determined by agreement between the
shareholder and IBERIA or by the Civil District Court for the Parish of
Lafayette if the shareholder and IBERIA are unable to agree. Shareholders of
IBERIA are not entitled to dissenters' rights.
To exercise the right of dissent, an Acadiana shareholder:
. must file with Acadiana a written objection to the merger agreement prior
to or at the meeting and
. must also vote his shares (in person or by proxy) against the merger
agreement at such meeting.
Neither a vote against the merger agreement nor a specification in a proxy
to vote against the merger agreement will in and of itself constitute the
necessary written objection to the merger agreement. Moreover, by voting in
favor of, or abstaining from voting on, the merger agreement, or by returning
the enclosed proxy without instructing the proxy holders to vote against the
merger agreement, a shareholder waives his rights under Section 131. The right
to dissent may be exercised only by the record owners of the shares and not by
persons who hold shares only beneficially. Beneficial owners who wish to
dissent to the merger agreement should have the record ownership of the shares
transferred to their names or instruct the record owner to follow the Section
131 procedure on their behalf.
If the merger agreement is approved by less than 80% of the total number of
shares of Acadiana common stock outstanding, then promptly after the effective
date written notice of the consummation of the merger agreement will be given
by IBERIA by registered mail to each former shareholder of Acadiana who filed a
written objection to the merger agreement and voted against it at such
shareholder's last address on Acadiana's records. Within 20 days after the
mailing of such notice, the shareholder must file with IBERIA a written demand
for payment for his shares at their fair cash value as of the day before the
Acadiana meeting and must state the amount demanded and a post office address
to which IBERIA may reply. He must also deposit the certificates formerly
representing his shares of Acadiana common stock in escrow with a bank or trust
company located in Lafayette Parish, Louisiana. The certificates must be duly
endorsed and transferred to IBERIA upon the sole condition that they be
delivered to IBERIA upon payment of the value of the shares in accordance with
Section 131. With the above-mentioned demand, the shareholder must also deliver
to IBERIA the written acknowledgment of such bank or trust company that it
holds the certificate(s), duly endorsed as described above.
Unless the shareholder objects to and votes against the merger agreement,
demands payment, endorses and deposits his certificates and delivers the
required acknowledgment in accordance with the procedures and within the time
periods set forth above, the shareholder will conclusively be presumed to have
acquiesced to the merger agreement and will forfeit any right to seek payment
pursuant to Section 131.
If IBERIA does not agree to the amount demanded by the shareholder, or does
not agree that payment is due, it will, within 20 days after receipt of such
demand and acknowledgment, notify such shareholder in writing at the designated
post office address of either (i) the amount it will agree to pay or (ii) its
belief that no payment is due. In this regard, shareholders should be aware
that opinions of investment banking firms as to fairness from a financial point
of view, including the opinion of Triangle Capital Partners, LLC described in
this proxy statement and prospectus, are not opinions as to "fair value" under
Louisiana law, and a determination of the fair cash value of the shares could
be less than the consideration to be paid by IBERIA in the merger.
If the shareholder does not agree to accept the offered amount, or disagrees
with IBERIA's assertion that no payment is due, he must, within 60 days after
receipt of such notice, file suit against IBERIA in the Civil District Court
for the Parish of Lafayette for a judicial determination of the fair cash value
of the shares. Any shareholder
32
entitled to file such suit may, within such 60-day period but not thereafter,
intervene as a plaintiff in any suit filed against IBERIA by another former
shareholder for a judicial determination of the fair cash value of such other
shareholder's shares. If a shareholder fails to bring or to intervene in such a
suit within the applicable 60-day period, he will be deemed to have consented
to accept IBERIA's statement that no payment is due or, if IBERIA does not
contend that no payment is due, to accept the amount specified by IBERIA in its
notice of disagreement.
If, upon the filing of any such suit or intervention, IBERIA deposits with
the court the amount, if any, which it specified in its notice of disagreement,
and if in that notice IBERIA offered to pay such amount to the shareholder on
demand, then the costs, not including legal fees, of the suit or intervention
will be taxed against the shareholder if the amount finally awarded to him,
exclusive of interest and costs, is equal to or less than the amount so
deposited; otherwise, the costs, not including legal fees, will be taxed
against IBERIA.
Upon filing a demand for the value of his shares, a shareholder ceases to
have any rights of a shareholder except the rights created by Section 131. The
shareholder's demand may be withdrawn voluntarily at any time before IBERIA
gives its notice of disagreement, but thereafter only with the written consent
of IBERIA. If his demand is properly withdrawn, or if the shareholder otherwise
loses his dissenters' rights, he will be restored to his rights as a
shareholder as of the time of filing of his demand for fair cash value.
Until the effective date, dissenting shareholders of Acadiana should send
any communications regarding their rights to Donna H. Domec, Corporate
Secretary, Acadiana Bancshares, Inc., 200 West Congress Street, Lafayette,
Louisiana 70501. After the effective date of the merger, dissenting
shareholders should send any communications regarding their rights to George J.
Becker, Secretary, IBERIABANK Corporation, 1011 East Admiral Doyle Drive, New
Iberia, Louisiana 70560. All such communications should be signed by or on
behalf of the dissenting shareholder in the form in which his shares are
registered on the books of Acadiana.
INFORMATION ABOUT ACADIANA
Acadiana Bancshares, Inc. is a Louisiana-chartered bank holding company with
its headquarters at 200 West Congress Street, Lafayette, Louisiana 70501. Its
banking subsidiary, LBA Savings Bank, is a Louisiana chartered savings bank
which operates five full-service branches in Lafayette and New Iberia and a
loan production office in Eunice, Louisiana.
Copies of Acadiana's 2001 Annual Report to Stockholders and Quarterly Report
on Form 10-Q for the quarter ended September 30, 2002 accompany this proxy
statement and prospectus and should be read in conjunction herewith. In
addition, the following documents have been filed by Acadiana with the
Commission and are incorporated by reference into this proxy statement and
prospectus: Acadiana's Annual Report on Form 10-K for the year ended December
31, 2001, Acadiana's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2002, June 30, 2002 and September 30, 2002, and Acadiana's Report on
Form 8-K filed on October 11, 2002. See "Where You Can Find More Information"
for information with respect to securing copies of documents incorporated by
reference in this proxy statement and prospectus.
INFORMATION ABOUT IBERIA
IBERIA is the parent holding company for IBERIABANK, a Louisiana state full
service bank with operations throughout Louisiana. The following documents, or
the indicated portions thereof, have been filed by IBERIA with the Commission,
and are incorporated by reference into this proxy statement and prospectus:
IBERIA's Annual Report on Form 10-K for the fiscal year ended December 31,
2001, its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2002,
June 30, 2002 and September 30, 2002, and Reports on Form 8-K filed on July 15,
2002, September 23, 2002, and November 25, 2002.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained herein or in any other document subsequently
filed and incorporated or deemed to be incorporated by reference herein
modifies or supersedes
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such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this proxy
statement and prospectus.
ADJOURNMENT OF THE SPECIAL MEETING
In the event that there are not sufficient votes to constitute a quorum or
to approve the adoption of the merger agreement at the time of the special
meeting, the merger agreement could not be approved unless the meeting was
adjourned to a later date or dates in order to permit further solicitation of
proxies. In order to allow proxies that have been received by Acadiana at the
time of the special meeting to be voted for an adjournment, if necessary,
Acadiana has submitted the question of adjournment to its shareholders as a
separate matter for their consideration. The board of directors of Acadiana
unanimously recommends that shareholders vote "FOR" the adjournment proposal.
If it is necessary to adjourn the special meeting, no notice of the adjourned
meeting is required to be given to shareholders, other than an announcement at
the special meeting of the place, date and time to which the special meeting is
adjourned, if the special meeting is adjourned for 30 days or less.
LEGAL MATTERS
Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P., New Orleans,
Louisiana, has rendered its opinion that the shares of IBERIA common stock to
be issued in connection with the merger agreement have been duly authorized
and, if and when issued pursuant to the terms of the merger agreement, will be
validly issued, fully paid and non-assessable.
EXPERTS
The 2001 consolidated financial statements of Acadiana incorporated in this
proxy statement and prospectus by reference from Acadiana's Annual Report to
Stockholders for the year ended December 31, 2001 have been audited by
Castaing, Hussey & Lolan, LLC, independent auditors, as stated in their report,
which has been incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
The audited consolidated financial statements of IBERIA and its subsidiaries
incorporated by reference herein have been audited by Castaing, Hussey & Lolan,
LLC, independent public accountants, as indicated in their report with respect
thereto, and have been so incorporated by reference in reliance upon the
authority of such firm as experts in accounting and auditing.
OTHER MATTERS
At the time of the preparation of this proxy statement and prospectus,
neither Acadiana nor IBKC had been informed of any matters to be presented for
action at the meeting other than consideration of approval of the merger
agreement. If any other matters come before the meeting or any adjournment
thereof, the persons named in the enclosed proxy will vote on such matters
according to their best judgment.
SHAREHOLDER PROPOSALS FOR THE ACADIANA 2003 ANNUAL MEETING
Pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, the
deadline for the submission of proposals by shareholders for inclusion in the
proxy statement and form of proxy to be used by Acadiana in connection with the
next annual meeting of shareholders of Acadiana, which will be held only if the
merger is not consummated before the time of such meeting, was November 23,
2002. In addition, Acadiana's Articles of Incorporation provide that any
director nominations and proposals submitted by shareholders must be received
by Acadiana no later than 90 days prior to the anniversary date of the
immediately proceeding annual meeting of shareholders, or January 25, 2003.
Acadiana's Articles of Incorporation also require that director nominations and
proposals submitted by shareholders contain certain information about the
nomination or the proposals and about the shareholder making the submission.
Any director nominations or proposals should be mailed to: Corporate Secretary,
Acadiana Bancshares, Inc., 200 West Congress Street, Lafayette, Louisiana 70501.
Shareholders are urged to sign the enclosed proxy and return it at once in
the enclosed envelope.
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IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC.
PRO FORMA COMBINED FINANCIAL INFORMATION
(unaudited)
The following unaudited pro forma combined financial statements were
prepared in connection with IBERIA's offer to exchange each outstanding share
of Acadiana common stock for $7.88 cash and between .6848 and .9265 shares of
IBERIA common stock, subject to adjustment, and give effect to the purchase
accounting adjustments and other assumptions described in the accompanying
notes. The unaudited pro forma combined balance sheet is based upon the
unaudited consolidated balance sheets of IBERIA and Acadiana as of September
30, 2002. The unaudited pro forma combined statement of income are based on the
consolidated statements of income of IBERIA and Acadiana for the nine-month
period ended September 30, 2002 (unaudited) and the year ended December 31,
2001. The pro forma combined financial statements do not give effect to the
anticipated cost savings or the disposition of certain yet-to-be identified
assets.
The resolution of the pending matters pertaining to the assets and
liabilities of Acadiana described above, as well as the operations of Acadiana
subsequent to September 30, 2002, will affect the allocation of the purchase
price. In addition, changes to the adjustments already included in the
unaudited pro forma combined financial statements are expected as valuations of
assets and liabilities are completed and as additional information becomes
available. An increase in the unallocated portion of the purchase price
remaining after fair value adjustments will result in a greater final
allocation to goodwill which will have a corresponding reduction in tangible
common equity. A decrease in the unallocated portion of the purchase price
remaining after fair value adjustments will have the opposite effect.
Accordingly, the final pro forma combined amounts will differ from those set
forth in the unaudited pro forma combined financial statements.
The information shown below should be read in conjunction with the
consolidated historical financial statements of IBERIA and Acadiana, including
the respective notes, which are incorporated by reference in this prospectus
and the unaudited pro forma combined per share financial information which
appear elsewhere in this prospectus. The pro forma data are presented for
comparative purposes only and are not necessarily indicative of the combined
financial position or results of operations in the future. The pro forma data
are also not necessarily indicative of the combined financial position or
results of operations which would have been realized had the merger been
consummated during the periods or as of the dates for which the pro forma
financial statements are presented. The pro forma financial statements are
based on an assumed .8371 exchange ratio (see Note 2 at page F-5).
F-1
IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC
PRO FORMA COMBINED BALANCE SHEET
SEPTEMBER 30, 2002
(unaudited)
Historical
---------------------
IBERIABANK Acadiana Pro Forma Pro Forma
(In thousands) Corporation Bancshares Adjustments Combined
-------------- ----------- ---------- ----------- ----------
ASSETS
Cash and due from banks....................... $ 46,159 $ 23,190 $ (15,763) (a) $ 53,586
Investment securities......................... 317,088 54,363 151 (b) 371,602
Mortgage loans held for sale.................. 7,827 3,272 -- 11,099
Loans......................................... 1,003,103 209,419 4,013 (b) 1,216,535
Allowance for loan loss....................... (12,518) (2,392) -- (14,910)
---------- -------- ---------- ----------
Net loans.................................. 990,585 207,027 4,013 1,201,625
---------- -------- ---------- ----------
Goodwill...................................... 35,401 -- 24,809 (c) 60,210
Other assets.................................. 62,987 21,054 4,853 (b) 88,894
---------- -------- ---------- ----------
Total assets............................... $1,460,047 $308,906 $ 18,063 $1,787,016
========== ======== ========== ==========
LIABILITIES
Noninterest-bearing deposits.................. $ 151,078 $ 14,546 -- $ 165,624
Interest-bearing deposits..................... 1,061,431 193,873 3,758 (b) 1,259,062
---------- -------- ---------- ----------
Total deposits............................. 1,212,509 208,419 3,758 1,424,686
Short-term borrowings......................... 47,296 1,605 -- 48,901
Long-term debt................................ 37,919 68,211 5,943 (b)(d) 112,073
Other liabilities............................. 19,292 1,846 -- 21,138
---------- -------- ---------- ----------
Total liabilities.......................... 1,317,016 280,081 9,701 1,606,798
---------- -------- ---------- ----------
SHAREHOLDERS' EQUITY
Preferred stock............................... -- -- -- --
Common stock.................................. 7,381 27 961 8,369
Additional paid-in-capital.................... 71,739 32,986 3,213 107,938
Retained earnings............................. 98,783 26,602 (26,602) 98,783
Other......................................... (1,403) (542) 542 (1,403)
Less: Treasury stock.......................... (33,469) (30,248) 30,248 (33,469)
---------- -------- ---------- ----------
Total shareholders' equity................. 143,031 28,825 8,362 (e) 180,218
---------- -------- ---------- ----------
Total liabilities and shareholders' equity. $1,460,047 $308,906 $ 18,063 $1,787,016
========== ======== ========== ==========
--------
(a) $9.3 million for payment of $7.88 cash per Acadiana share and $6.5 million
for after-tax cost of one-time expenses and cash-out of Acadiana options
(b) Fair value adjustments, including $3.2 million of core deposit intangibles
in other assets
(c) Goodwill resulting from merger
(d) Cancellation of Acadiana ESOP debt resulting in a $1.2 million reduction in
liability
(e) Elimination of Acadiana equity and issuance of 988,229 shares of IBERIA
stock, based on value of IBERIA stock as of September 30, 2002, at a fair
market value of $37.2 million
See notes to pro forma combined financial statements.
F-2
IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC
PRO FORMA COMBINED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 2001
(unaudited)
Historical
----------------------
IBERIABANK Acadiana Pro Forma Pro Forma
(In thousands, except per share data) Corporation Bancshares Adjustments Combined
------------------------------------- ----------- ---------- ----------- ---------
Interest and Dividend Income
Investment securities.............................. $ 17,833 $ 2,085 $ (15)(a) $ 19,903
Loans.............................................. 79,947 20,232 (951)(b) 99,228
Other.............................................. 2,588 651 (323)(c) 2,916
-------- ------- ------- --------
Total interest and dividend income.............. 100,368 22,968 (1,289) 122,047
-------- ------- ------- --------
Interest Expense
Deposits........................................... 42,127 9,467 (1,756)(d) 49,838
Short-term borrowings.............................. 617 56 673
Long-term debt..................................... 3,274 3,953 (1,091)(e) 6,136
-------- ------- ------- --------
Total interest expense.......................... 46,018 13,476 (2,847) 56,647
-------- ------- ------- --------
Net Interest Income................................ 54,350 9,492 1,558 65,400
Provision for loan losses.......................... 5,046 20 -- 5,066
-------- ------- ------- --------
Net interest income after provision for loan losses 49,304 9,472 1,558 60,334
-------- ------- ------- --------
Noninterest Income
Service charges on deposit accounts................ 8,054 918 -- 8,972
Gain on sale of loans, net......................... 2,234 720 -- 2,954
Other.............................................. 4,856 210 -- 5,066
-------- ------- ------- --------
Total noninterest income........................ 15,144 1,848 -- 16,992
-------- ------- ------- --------
Noninterest Expense
Salaries and employee benefits..................... 21,187 4,243 25,430
Occupancy and equipment............................ 5,439 643 51 (f) 6,133
Amortization of acquisition intangibles............ 3,151 -- 915 (g) 4,066
Communication and delivery......................... 2,510 297 -- 2,807
Other.............................................. 9,424 2,502 -- 11,926
-------- ------- ------- --------
Total noninterest expense....................... 41,711 7,685 966 50,362
-------- ------- ------- --------
Income Before Income Taxes......................... 22,737 3,635 592 26,964
Income tax expense................................. 8,229 1,317 207 (h) 9,753
-------- ------- ------- --------
Net Income......................................... $ 14,508 $ 2,318 $ 385 $ 17,211
======== ======= ======= ========
Earnings per share--basic.......................... $ 2.48 $ 2.12 $ 2.66
======== ======= ========
Earnings per share--diluted........................ $ 2.36 $ 2.00 $ 2.41
======== ======= ========
--------
(a) Amortization of premium recorded on securities
(b) Amortization of premium recorded on loans
(c) Adjustment for lost interest on cash paid
(d) Amortization of premium recorded on deposits
(e) Amortization of premium recorded on FHLB borrowings
(f) Depreciation of fair value adjustment to fixed assets
(g) Amortization of core deposit intangible and mortgage servicing rights
(h) Tax effect of all other adjustments at 35%
See notes to pro forma combined financial statements.
F-3
IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC.
PRO FORMA COMBINED STATEMENT OF INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2002
(unaudited)
Historical
----------------------
IBERIABANK Acadiana Pro Forma Pro Forma
(In thousands, except per share data) Corporation Bancshares Adjustments Combined
------------------------------------- ----------- ---------- ----------- ---------
Interest and Dividend Income
Investment securities.............................. $ 11,634 $ 1,935 $ (11)(a) $ 13,558
Loans.............................................. 53,687 12,382 (718)(b) 65,351
Other.............................................. 589 292 (242)(c) 639
-------- ------- ------- --------
Total interest and dividend income.............. 65,910 14,609 (971) 79,548
-------- ------- ------- --------
Interest Expense
Deposits........................................... 19,225 4,717 (1,333)(d) 22,609
Short-term borrowings.............................. 368 30 398
Long-term debt..................................... 1,918 2,906 (827)(e) 3,997
-------- ------- ------- --------
Total interest expense.......................... 21,511 7,653 (2,160) 27,004
-------- ------- ------- --------
Net Interest Income................................ 44,399 6,956 1,189 52,544
Provision for loan losses.......................... 4,498 -- -- 4,498
-------- ------- ------- --------
Net interest income after provision for loan losses 39,901 6,956 1,189 48,046
-------- ------- ------- --------
Noninterest Income
Service charges on deposit accounts................ 7,334 590 -- 7,924
Gain on sale of loans, net......................... 1,406 525 -- 1,931
Other.............................................. 4,522 495 -- 5,017
-------- ------- ------- --------
Total noninterest income........................ 13,262 1,610 -- 14,872
-------- ------- ------- --------
Noninterest Expense
Salaries and employee benefits..................... 17,238 3,483 -- 20,721
Occupancy and equipment............................ 4,088 513 39(f) 4,640
Amortization of acquisition intangibles............ 224 -- 688(g) 912
Communication and delivery......................... 1,894 244 -- 2,138
Other.............................................. 9,371 1,917 -- 11,288
-------- ------- ------- --------
Total noninterest expense....................... 32,815 6,157 727 39,699
-------- ------- ------- --------
Income Before Income Taxes......................... 20,348 2,409 462 23,219
Income tax expense................................. 6,612 842 162(h) 7,616
-------- ------- ------- --------
Net Income......................................... $13,736 $ 1,567 $ 300 $15,603
======== ======= ======= ========
Earnings per share--basic.......................... $ 2.41 $ 1.49 $ 2.33
======== ======= ========
Earnings per share--diluted........................ $ 2.23 $ 1.38 $ 2.18
======== ======= ========
--------
(a) Amortization of premium recorded on securities
(b) Amortization of premium recorded on loans
(c) Adjustment for lost interest on cash paid
(d) Amortization of premium recorded on deposits
(e) Amortization of premium recorded on FHLB borrowings
(f) Depreciation of fair value adjustment to fixed assets
(g) Amortization of core deposit intangible and mortgage servicing rights
(h) Tax effect of all other adjustments at 35%
See notes to pro forma combined financial statements.
F-4
IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC.
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS
(unaudited)
NOTE 1--BASIS OF PRESENTATION
The unaudited pro forma combined balance sheet combines the historical
consolidated balance sheets of IBERIA and Acadiana as if the merger had been
effective on September 30, 2002. The pro forma combined statements of income
for the nine month period ended September 30, 2002 and the year ended December
31, 2001 combine the historical consolidated statements of income of IBERIA and
Acadiana as if the merger is effective on January 1/st/ of each of the periods
presented. Certain amounts in the historical financial statements of Acadiana
have been reclassified in the unaudited pro forma combined financial statements
to conform to IBERIA's historical financial statements.
The merger is accounted for as a purchase. In accordance with Financial
Accounting Standards Board Statement Nos. 141 and No. 142, assets and
liabilities of Acadiana are adjusted to their estimated fair value and combined
with the recorded values of the assets and liabilities of IBERIA. Applicable
income tax effects of such adjustments are included as a component of IBERIA's
net deferred tax asset. Adjustments are made to reflect the recording of
intangibles as well as to eliminate any intangible balances previously recorded
by Acadiana in accordance with the purchase method of accounting.
Determination of the fair value of Acadiana's assets and liabilities has
been estimated based on best available information. Purchase accounting
adjustments are subject to change as new information becomes available.
NOTE 2--PURCHASE PRICE
The purchase price is based on exchanging $7.88 in cash and .8371 shares of
IBERIA common stock for each outstanding Acadiana share at the closing price
per share of IBERIA common stock on September 30, 2002, the date of the pro
forma balance sheet. Exercise of Acadiana's stock options are not included in
the number of outstanding shares of Acadiana on the assumption that all options
will be cashed out on the closing date at a price equal to the fair market
value of IBERIA stock to be issued less the exercise price of the option.
Based upon values as of September 30, 2002, the total market value of the
IBERIA common stock to be issued in connection with the merger is calculated as
follows (in thousands):
Acadiana's common shares outstanding on September 30, 2002......... 1,180
Exchange ratio..................................................... .8371
-------
IBERIA common stock to be issued................................... 988
Market price per share of IBERIA common stock at September 30, 2002 $ 37.63
-------
Total market value of IBERIA common stock to be issued............. $37,187
=======
In addition to the above market value of the IBERIA common stock to be
issued, the total purchase price will include other direct merger costs of
IBERIA, such as legal, investment banking and other professional fees.
F-5
IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC.
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS--(Continued)
(unaudited)
NOTE 3--ALLOCATION OF PURCHASE PRICE
Certain matters are still pending that will have an effect on the ultimate
allocation of the purchase price. Accordingly, the allocation of the purchase
price has not been finalized and the portion of the purchase price allocated to
goodwill and identifiable intangibles is subject to change. All amounts are
based on best available information as of September 30, 2002, including the
amount assigned to core deposit intangibles, which will be determined through a
core deposit study at a later date.
The purchase price in thousands of dollars has been allocated as described
in the table below:
Historical net assets applicable to Acadiana's common stock at September 30, 2002..... $28,825
After tax merger related charges, severance payments and data processing contract
termination costs................................................................... (3,080)
Payment in settlement of Acadiana's outstanding stock options, net of tax............. (3,380)
Increase (decrease) to Acadiana's net asset value at September 30, 2002 as a result of
estimated fair value adjustments:
Investment Securities.............................................................. $ 151
Loans.............................................................................. 4,013
Fixed Assets....................................................................... 1,565
Core Deposit Intangibles........................................................... 3,163
Other Assets....................................................................... (325)
Deposits........................................................................... (3,758)
FHLB Borrowings.................................................................... (7,143)
Unearned ESOP liability............................................................ 1,200
Deferred taxes on fair value adjustments........................................... 450
-------
Net estimated fair value adjustments........................................... (684)
Elimination of Acadiana's existing goodwill and identifiable intangibles.............. --
-------
Total preliminary allocation of purchase price..................................... 21,681
Goodwill due to the merger............................................................ 24,809
-------
Total purchase price............................................................... $46,490
=======
It is expected that approximately $5.6 million of costs related to premises,
severance and other restructuring charges will be incurred in connection with
the merger. To the extent that this amount includes costs related to Acadiana's
premises, employees and operations, they will affect the final amount of
goodwill as of the consummation of the merger. The remaining costs related to
IBERIA's premises, employees and operations as well as all costs relating to
systems conversions and other indirect, integration costs will be expensed,
either upon consummation of the merger or as incurred.
NOTE 4--TRANSACTION FUNDING
For purposes of these statements, funding for the transaction has been
assumed to come out of interest-bearing cash currently invested as of September
30, 2002 at 2.05%. Alternative funding sources for this transaction and other
liquidity requirements include borrowings or the issuance of trust preferred
stock.
F-6
IBERIABANK CORPORATION AND ACADIANA BANCSHARES, INC.
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS--(Continued)
(unaudited)
NOTE 5--AVERAGE SHARES OUTSTANDING
The pro forma weighted average shares outstanding for each of the periods
presented is based on the historical IBERIA weighted average shares outstanding
plus the shares of common stock to be issued to Acadiana shareholders. Based on
the price of IBERIA stock at September 30, 2002, a total of 988,229 shares
would be issued in the merger.
NOTE 6--PURCHASE ADJUSTMENT AMORTIZATION PERIOD
The following assumptions were utilized for purposes of determining the pro
forma effect of the Acadiana acquisition on the statement of income:
Amortization Method of Amortization or
Category of Purchase Adjustment Period Accretion
------------------------------- ------------ -------------------------
Investment securities (held to maturity) 10 years Straight line
Mortgage loans.......................... 7 years Interest method
Other loans............................. 3 years Straight line
Buildings............................... 35 years Straight line
Core deposit intangibles................ 7 years Sum of the Years Digits
Deposits................................ 2.8 years Interest method
Long-term debt.......................... 6.5 years Interest method
F-7
[Letterhead of Triangle Capital Partners, LLC Appears here]
January 10, 2003
Board of Directors
Acadiana Bancshares, Inc.
200 West Congress Street
Lafayette, LA 70501
Members of the Board of Directors:
You have requested our opinion as to the fairness, from a financial point of
view, to the holders ("Holders") of the common stock (the "Shares") of Acadiana
Banchares, Inc. ("ANA") of the Merger Consideration to be paid by IBERIABANK
Corporation ("IBKC") in connection with the proposed merger (the "Merger")
between ANA and IBKC. The Merger will be completed pursuant to the Agreement
and Plan of Merger dated September 22, 2002 (the "Agreement") by and between
ANA and IBKC. Pursuant to the Agreement, ANA will be merged into a wholly owned
subsidiary of IBKC.
Under the terms of the Agreement, at the Effective Time, each of the
outstanding Shares, other than certain shares specified in the Agreement, will
be converted into cash in the amount of $7.88 per share and common stock in an
exchange ratio ranging from 0.6848 to 0.9265 shares of IBKC common stock
(subject to adjustment under certain defined circumstances) (such cash and
common stock proposed to be received by the Holders (other than any Shares held
by IBKC or their affiliates) being referred to herein as the "Merger
Consideration"). Once the exchange ratio has been fixed, based on a valuation
period that will conclude in the month in which the transaction is completed,
the market value of the stock portion of the Merger Consideration to be paid by
IBKC will fluctuate from that point forward with changes in IBKC's stock price.
The Merger Agreement may be terminated prior to the Effective Time by the board
of directors of ANA if the Market Value (as defined in the Agreement) is less
than $30.00, subject to IBKC's right to increase the cash portion of the Merger
Consideration.
In arriving at our fairness opinion, we have reviewed certain publicly
available business, financial and stockholder information relating to IBKC and
its subsidiaries and to ANA and its subsidiaries. In addition, we have reviewed
certain financial information provided to us by both IBKC and ANA pertaining to
their respective business plans and projections.
In connection with the foregoing, we have (i) reviewed the Agreement, (ii)
IBKC's Annual Report, Proxy Statement, and Form 10-K for the three calendar
years ended December 31, 2001, 2000 and 1999, and IBKC's quarterly reports on
Form 10-Q for the trailing three calendar quarters through September 30, 2002,
(iii) ANA's Annual Report, Proxy Statement, and Form 10-K for the three
calendar years ended December 31, 2001, 2000 and 1999, and ANA's quarterly
reports on Form 10-Q for the trailing three calendar quarters through September
30, 2002. In addition, with respect to both IBKC and ANA, we have reviewed
certain internal financial information and financial forecasts relating to the
business, earnings, cash flows, assets and prospects of the respective
companies furnished to us by IBKC and ANA, have held discussions with members
of senior management of ANA and IBKC, including without limitation, their
respective outside accountants, legal advisors and others concerning the past
and current results of operations of ANA and IBKC, their respective current
financial condition and managements' opinion of their respective future
prospects. We have also reviewed the historical record of reported prices,
trading activity and dividend payments for both IBKC and ANA. We have compared
the reported financial terms of selected recent business combinations in the
banking industry and performed such other studies and analyses as we considered
appropriate under the circumstances.
For purposes of this opinion, we have assumed and relied on, without
independent verification, the accuracy and completeness of the material
furnished to us by ANA and IBKC and the material otherwise made available to
us, including information from published sources, and we have not independently
verified such data. With
A-1
respect to the financial information, including forecasts we received from IBKC
and ANA, we assumed (with your consent) that they had been reasonably prepared
reflecting the best currently available estimates and good faith judgment of
the management of IBKC and ANA. In addition, we have not made or obtained any
independent appraisals or valuations of the assets or liabilities, and
potential and/or contingent liabilities of IBKC or ANA. We have further relied
on the assurances of management of IBKC and ANA that they are not aware of any
facts that would make such information inaccurate or misleading. We express no
opinion on matters of a legal, regulatory, tax or accounting nature or the
ability of the Merger, as set forth in the Agreement, to be consummated. No
opinion is expressed as to whether any alternative transaction might produce
Merger Consideration for ANA or its Holders in an amount in excess of that
contemplated in the Merger (and ANA has informed us that no alternative
transaction is, and we are not otherwise aware of any alternative transaction
that is, currently being contemplated by ANA).
In rendering our opinion, we have assumed that the Merger will be
consummated on the terms described in the Agreement. We have also assumed that
the Fee Adjustment Amount (as defined in the Agreement), if any, will not
exceed $3 million. We were not requested to and did not solicit any expressions
of interest from any other parties with respect to the actions contemplated in
connection with the Merger.
In rendering our opinion, we have assumed that in the course of obtaining
the necessary approvals for the Merger, no restrictions or conditions will be
imposed that would have a material adverse effect on the contemplated benefits
of the Merger to IBKC or the ability to consummate the Merger. Our opinion is
based on the market, economic and other relevant considerations as they exist
and have been evaluated by us on the date hereof.
We have acted as financial advisor to ANA in connection with the Merger and
will receive a fee for such services, including a fee that is contingent upon
rendering this opinion and a fee which is contingent upon consummation of the
Merger. In addition, ANA has agreed to indemnify us for certain liabilities
arising out of our engagement by ANA in connection with the Merger.
This opinion may not be disclosed, communicated, reproduced, disseminated,
quoted or referred to at any time (in whole or part), to any third party or in
any manner of for any purpose whatsoever without our prior written consent,
although this opinion may be (i) furnished to IBKC for inspection purposes
only, provided however, that such consent to provide IBKC with a copy of this
opinion is based on the condition that each of ANA and IBKC have acknowledged
and agreed that IBKC is not authorized to and shall not rely on this opinion,
and (ii) included in its entirety in the proxy statement/prospectus of ANA used
to solicit stockholder approval of the Merger so long as any description of or
reference to us or this opinion and the related analysis in such filing is in a
form reasonably acceptable to us and our counsel. It should be understood that
subsequent developments may affect this opinion and we do not have any
obligation to revise or reaffirm this opinion. The opinion does not in any
matter address the prices at which the capital stock of ANA or IBKC or any of
their respective affiliates has traded in the past or at which such stock of
IBKC or any of its affiliates may trade after the Merger. It is understood that
this letter is directed to the Board of Directors of ANA in its consideration
of the Agreement, and is not intended to be and does not constitute a
recommendation to any Holder as to how such Holder should vote with respect to
the Merger.
Based upon and subject to the foregoing, including the various assumptions
and limitations set forth herein, and based on such other matters as we
considered relevant, it is our opinion that as of the date hereof, the Merger
Consideration to be paid by IBKC in the Merger is fair, from a financial point
of view, to the Holders of ANA.
Very truly yours,
/s/ TRIANGLE CAPITAL PARTNERS, LLC
TRIANGLE CAPITAL PARTNERS, LLC
A-2
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger ("Agreement") as of September 22, 2002, between
Acadiana Bancshares, Inc. ("ANA"); and IBERIABANK Corporation, a Louisiana
corporation ("IBKC").
RECITALS
1. Each of ANA and IBKC is a registered bank holding company under the BHC
Act (such term and other capitalized terms used in this Agreement are used as
defined in Section I).
2. The Board of Directors of each of ANA and IBKC believes that the
transactions described in this Agreement are in the best interests of such
Party and its shareholders.
3. By virtue of the reorganization that is effectuated by this Agreement,
(a) ANA will be merged into a wholly-owned subsidiary of IBKC, and (b) as a
result of the foregoing Merger, except as provided in this Agreement, the then
outstanding shares of ANA Common Stock will be converted into shares of IBKC
Common Stock and cash.
4. The Merger is subject to prior approval of, among others, the
shareholders of ANA and the Federal Reserve, and the prior satisfaction of
certain other conditions set forth in this Agreement.
5. ANA has simultaneously executed and delivered its Stock Option Agreement
to IBKC, by which ANA grants to IBKC an option to purchase shares of ANA Common
Stock under certain circumstances described therein.
6. The Parties intend that the reorganization contemplated by this Agreement
qualify for federal income tax purposes as a tax-free reorganization under the
Internal Revenue Code.
AGREEMENT
In consideration of the foregoing and of the mutual warranties,
representations, covenants and agreements set forth herein, and for other good
and valuable consideration the receipt and sufficiency of which are
acknowledged, the parties to this Agreement agree as follows:
SECTION I.
DEFINITIONS
Except as may otherwise be provided in this Agreement, the capitalized terms
set forth below shall have the following respective meanings, in their singular
or plural forms as applicable:
1.1 "Acquisition Proposal"--any proposal or offer with respect to any of the
following (other than the transactions contemplated hereunder) involving ANA or
any of its Subsidiaries: (i) any merger, consolidation, share exchange,
business combination or other similar transaction; (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition of 20% or more of its
consolidated assets in a single transaction or series of transactions; (iii)
any tender offer or exchange offer for 20% or more of the outstanding shares of
its capital stock or the filing of a registration statement under the
Securities Act in connection therewith; or (iv) any public announcement to
engage in any of the foregoing.
B-1
1.2 "Acquisition Transaction"--with respect to each Party, any of (i) a
merger, consolidation or share exchange, or any similar transaction (other than
the Merger), (ii) a purchase, lease or other acquisition of all or
substantially all the assets of such Party or any significant subsidiary (as
defined in Rule 1.02 of Regulation S-X of the SEC) (a "Significant Subsidiary")
of such Party, (iii) a purchase or other acquisition of beneficial ownership by
any person or "group" (as such term is defined in Section 13(d)(3) of the 1934
Act) (including by way of merger, consolidation, share exchange or otherwise)
of securities representing 20% or more of the voting power of such Party or any
Significant Subsidiary of such Party, but excluding the acquisition of
beneficial ownership by any employee benefit plan maintained or sponsored by
such Party, (iv) a tender or exchange offer to acquire securities representing
20% or more of the voting power of such Party, (v) a public proxy or consent
solicitation made to shareholders of such Party seeking proxies in opposition
to any proposal that has been recommended by the Board of Directors of such
Party, (vi) the filing of an application or notice with the Federal Reserve or
other federal or state bank regulatory authority (which application has been
accepted for processing) seeking approval to engage in one or more of the
transactions referenced in clauses (i) through (iv) above, or (vii) the making
of a bona fide proposal to such Party or its shareholders by public
announcement or written communication that is or becomes the subject of public
disclosure to engage in one or more of the transactions or events referenced in
clauses (i) through (v) above.
1.3 "Agreement"--this Agreement and Plan of Merger.
1.4 "ANA Common Stock"--the Common Stock of ANA.
1.5 "ANA Companies"--collectively, ANA and all ANA Subsidiaries.
1.6 "ANA ESOP"--the ANA Employee Stock Ownership Plan.
1.7 "ANA 401(k) Plan"--the LBA Bank 401(k) Savings Plan.
1.8 "ANA Stock Option Plan"--the Stock Option Plan approved by the ANA Board
of Directors in 1996.
1.9 "ANA Subsidiaries"--the Subsidiaries of ANA, which shall include LBA
Bank and the other ANA Subsidiaries described in Section 5.3 of this Agreement,
and any corporation, bank, savings bank, association or other entity that
becomes a Subsidiary of ANA prior to the Effective Time.
1.10 "BCL"--the Louisiana Business Corporation Law.
1.11 "BHC Act"--the federal Bank Holding Company Act of 1956.
1.12 "Business Day"--Monday through Friday of each week, except a legal
holiday recognized as such by the U.S. Government or any day on which banking
institutions in the State of Louisiana are authorized or obligated to close.
1.13 "Certificates"--the certificates representing shares of ANA Common
Stock on or prior to the Effective Time.
1.14 "Closing"--the closing of the transactions contemplated hereunder as
described in Section 3.1 of this Agreement.
1.15 "Code"--the Internal Revenue Code of 1986.
1.16 "Dissenters Shares"--shares of ANA Common Stock as to which dissenters
rights have been perfected and not withdrawn or otherwise forfeited under
Section 131 of the BCL.
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1.17 "Effective Time"--the date and time at which the Merger becomes
effective, as described in Section 3.2 of this Agreement.
1.18 "ERISA"--the Employee Retirement Income Security Act of 1974.
1.19 "Exchange Agent"--IBKC's stock transfer agent or such other third party
experienced in the stock transfer business reasonably acceptable to ANA which
shall act as the exchange agent pursuant to Section 2.3 hereof.
1.20 "Exchange Ratio"--the quotient, rounded to the nearest ten-thousandth,
obtained by dividing $31.50 by the Market Value, provided that (i) if the
Market Value is greater than $46.00, the Exchange Ratio shall be fixed at
0.6848 (the "Maximum Stock Ratio"), and (ii) if the Market Value is less than
$34.00, the Exchange Ratio will be fixed at 0.9265 (the "Minimum Stock Ratio"),
provided, however, that the Exchange Ratio shall be adjusted in accordance with
Section 2.3(a)(i) hereof in the event of a Stock Reduction and/or pursuant to
Section 2.3(c) hereof.
1.21 "Fee Adjustment Amount"--the amount, if any, by which the legal fees
incurred by ANA in connection with the negotiation and review of this Agreement
and consummation of the transactions contemplated hereby exceed $180,000 (the
"Threshold").
1.22 "Financial Statements"--(i) the audited consolidated balance sheets
(including related notes and schedules, if any) of a Party as of December 31,
2001 and 2000, and the related consolidated statements of income, changes in
stockholders' equity, and cash flows (including related notes and schedules, if
any) for the respective periods then ended, as filed by such Party in SEC
Documents and (ii) the unaudited consolidated balance sheets of such Party
(including related notes and schedules, if any) and related consolidated
statements of income, changes in stockholders' equity, and cash flows
(including related notes and schedules, if any) included in SEC Documents filed
by such Party with respect to periods ended subsequent to December 31, 2001.
1.23 "Federal Reserve"--the Board of Governors of the Federal Reserve System.
1.24 "GAAP"--generally accepted accounting principles.
1.25 "IBAC"--IBERIABANK Acquisition Corporation, a wholly-owned subsidiary
of IBKC.
1.26 "IBERIABANK"--IBERIABANK, a wholly-owned subsidiary of IBKC.
1.27 "IBKC Common Stock"--the Common Stock of IBKC.
1.28 "IBKC Companies"--collectively, IBKC and all IBKC Subsidiaries
1.29 "IBKC Stock Incentive Plan"--IBKC's Stock Incentive Plan.
1.30 "IBKC Subsidiaries"--the Subsidiaries of IBKC, which shall include the
IBKC Subsidiaries described in Section 5.3 of this Agreement and any
corporation, bank, savings bank, association or other entity that becomes or is
acquired as a Subsidiary of IBKC in the future.
1.31 "LBA Bank"--LBA Savings Bank, a Subsidiary of ANA.
1.32 "Market Value"--the average of the closing sales prices of a share of
IBKC Common Stock on the NASDAQ Stock Market for the first 10 trading days of
the month in which the Effective Time occurs ("The Measurement Period"). If
IBKC changes the number of shares of IBKC Common Stock issued and outstanding
as a result of any stock split, stock dividend or other similar change in
IBKC's capitalization, or if a distribution of securities is made in respect of
the IBKC Common Stock as a result of any dividend (other than regular quarterly
cash dividends), spinoff or other reorganization in which IBKC Common Stock is
not changed into or exchanged for a different kind of securities, and in any
such case the record date is before the Effective Time and the ex-dividend or
ex-distribution date is subsequent to, or during, the period during which
Market Value is
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determined such that such event is not reflected in any one or more of the
closing sales prices used to determine Market Value, the appropriate adjustment
shall be made in such closing sales price or prices so as to reflect such
change.
1.33 "Material Adverse Effect"--when used in connection with ANA or IBKC,
means any change, effect, event, occurrence or state of facts that (a) is, or
would reasonably be expected to be, materially adverse to the business,
financial condition or results of operations of such Party and its Subsidiaries
taken as a whole, other than (i) any change, effect, event or occurrence
relating to the United States economy or financial or securities in general,
(ii) any change, effect, event or occurrence relating to the banking and
financial services industry generally, including changes in the prevailing
level or interest rates, (iii) any change, effect, event or occurrence relating
to the announcement or performance of this Agreement and the transactions
contemplated hereby, (iv) with respect to ANA, any change, effect, event or
occurrence resulting from any action or omission taken with the prior consent
of IBKC, (v) any change in banking, savings association or similar laws, rules
or regulations of general applicability or interpretations thereof by courts or
governmental authorities and (vi) any change in GAAP or regulatory accounting
requirements applicable to banks, savings banks or their holding companies
generally, or (b) materially and adversely affects the ability of the Party to
perform its obligations hereunder or materially and adversely affects the
timely consummation of the transactions contemplated hereby.
1.34 "Merger Agreement"--the Joint Agreement of Merger, substantially in the
form attached hereto as Exhibit I, providing for the Merger.
1.35 "Merger Parties"--collectively, IBKC, IBAC and ANA.
1.36 "Merger"--the merger of ANA into IBAC.
1.37 "1933 Act"--the Securities Act of 1933.
1.38 "1934 Act"--the Securities Exchange Act of 1934.
1.39 "Party"--either IBKC or ANA, and "Parties"--IBKC and ANA.
1.40 "Person"--any individual, bank, corporation, partnership, association,
joint stock company, business trust, limited liability company or
unincorporated association.
1.41 "Previously Disclosed"--with respect to a Party, information in a
disclosure schedule by such Party to the other Party delivered to such other
Party before or contemporaneously with, the execution and delivery of this
Agreement and accepted by such other Party. "Previously Disclosed" shall also
mean all information about a Party that had been publicly disclosed in SEC
Documents filed by that Party before the date of this Agreement.
1.42 "Proxy Statement"--the proxy statement/prospectus used by ANA to
solicit the approval by its shareholders of the transactions contemplated by
this Agreement and the Merger Agreement.
1.43 "Purchase Event" shall have the meaning given to such term in the Stock
Option Agreement.
1.44 "Registration Statement"--the Registration Statement on Form S-4 (or
other appropriate form) and all amendments and supplements thereto filed with
the SEC by IBKC under the 1933 Act in connection with the transactions
contemplated by this Agreement.
1.45 "Regulatory Authorities"--collectively, the Federal Reserve, the State
Regulatory Commissioners and any other federal or state banking, insurance,
securities or other regulatory authority whose approval is necessary to
consummate the transactions contemplated by this Agreement.
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1.46 SEC"--the United States Securities and Exchange Commission.
1.47 SEC Documents"--all reports, proxy statements, registration statements
and other documents filed by a Party or any of its Subsidiaries pursuant to the
Securities Laws.
1.48 Securities Laws"--the 1933 Act, the 1934 Act, the Investment Company
Act of 1940, the Investment Advisors Act of 1940, the Trust Indenture Act of
1939, and the rules and regulations of the SEC under each of such Acts.
1.49 "Shareholders Meeting"--the meeting of the shareholders of ANA to be
held pursuant to Section 7.1 of this Agreement, including any adjournments
thereof.
1.50 "State Regulatory Commissioners"--any state banking, insurance,
securities or other regulatory authority whose approval is necessary to
consummate the transactions contemplated by this Agreement, the Merger
Agreement and the Stock Option Agreement.
1.51 "Stock Option Agreement"--the Stock Option Agreement, in the form
attached hereto as Exhibit II, to be dated the date hereof between ANA and IBKC.
1.52 Subsidiaries"--all those corporations, banks, savings banks,
associations and other entities of which the Party in question owns or controls
5% or more of the outstanding equity securities either directly or through an
unbroken chain of entities as to each of which 5% or more of the outstanding
equity securities is owned directly or indirectly by such Party; provided,
however, there shall not be included any such entity acquired in good faith
through foreclosure, or any such entity to the extent that the equity
securities of such entity are owned or controlled in a bona fide fiduciary
capacity, through a small business investment corporation or otherwise as an
investment by an entity that invests in unaffiliated companies in the ordinary
course of business.
1.53 Superior Proposal"--means a bona fide written proposal made by a Person
other than ANA or IBKC which is (i) for a merger, reorganization,
consolidation, share exchange, business combination, recapitalization, or
similar transaction involving such Party as a result of which the other party
thereto or its stockholders will own 40% or more of the combined voting power
of the entity surviving or resulting from such transaction (or the ultimate
parent entity thereof), and (ii) is on terms which the Board of Directors of
such Party in good faith concludes (following receipt of the advice of its
financial advisors and outside counsel which shall not be contrary to such
conclusion), taking into account, among other things, all legal, financial,
regulatory and other aspects of the proposal and the Person making the
proposal, (x) would, if consummated, result in a transaction that is superior
to its stockholders (in their capacities as stockholders), from a financial
point of view, than the transactions contemplated by this Agreement and any
subsequent proposal submitted by IBKC and (y) is reasonably capable of being
completed in accordance with its terms (including that any financing required
to consummate the transaction is reasonably likely to be obtained).
In Section V of this Agreement, the capitalized terms set forth below shall
have the following respective meanings, in their singular or plural forms, as
applicable:
1.54 "Warrantor"--IBKC or ANA, as the case may be.
1.55 Warrantor Capital Stock"--the IBKC Capital Stock or the ANA Common
Stock, as the context shall require, which shall in this and each of the
following cases depend on whether the Warrantor is IBKC or ANA and will
correspond therewith.
1.56 "Warrantor Common Stock"--the IBKC Common Stock or the ANA Common
Stock, as the context shall require.
1.57 Warrantor Companies"--the IBKC Companies or the ANA Companies, as the
context shall require.
1.58 Warrantor Financial Statements"--the Financial Statements of Warrantor.
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1.59 Warrantor Stock Option Plans"--the IBKC Stock Option Plans or the ANA
Stock Option Plan, as the context shall require.
1.60 Warrantor Subsidiaries"--the Subsidiaries of Warrantor.
Other terms are defined as set forth herein below.
SECTION II.
CERTAIN TRANSACTIONS AND TERMS OF MERGER
2.1 Execution of Stock Option Agreement. Simultaneously with the execution
of this Agreement and as a condition thereto, ANA has approved the execution
and delivery of the Stock Option Agreement and has executed and delivered the
Stock Option Agreement.
2.2 Merger. Subject to the terms and conditions of this Agreement, at the
Effective Time, ANA will be merged into IBAC in accordance with the Merger
Agreement and Section 112 of the BCL.
2.3 Conversion of ANA Common Stock.
(a) Except for Dissenters Shares and as otherwise provided herein, at the
Effective Time each outstanding share of ANA Common Stock will be converted
into:
(i) a number of shares of IBKC Common Stock equal to the Exchange Ratio,
provided, however, that if the total amount of shares of IBKC Common Stock
to be issued in exchange for all outstanding shares of ANA Common Stock
pursuant hereto were to exceed 19.9% of the issued and outstanding shares of
IBKC Common Stock immediately prior to the Effective Time, then the total
number of shares of IBKC Common Stock to be issued in exchange for ANA
Common Stock shall be reduced (a "Stock Reduction") to an amount equal to
19.9% of the then outstanding shares of IBKC Common Stock and the Exchange
Ratio shall be appropriately adjusted (the "Stock Consideration"); and
(ii) cash in an amount equal to $7.88 per share of ANA Common Stock
exchanged, subject to adjustment in the event of (A) any Stock Reduction (in
which event, the amount of cash to be received by ANA shareholders shall be
increased by an amount equal to the number of shares by which the Stock
Consideration is reduced pursuant to Section 2.3(a)(i) hereof multiplied by
the Market Value), (B) any Fee Adjustment Amount, in which case, unless
waived by IBKC, the amount of cash to be received by ANA shareholders shall
be reduced by the quotient equal to the Fee Adjustment Amount, if any,
divided by the sum of 1,168,252, plus the number of shares issued before the
Effective Time pursuant to the exercise of outstanding stock options and the
number of shares subject to options outstanding at the Effective Time,
provided that fractions of a cent shall be disregarded, and/or (C) an
election of IBKC pursuant to Section 9.1(k) hereof (the "Cash
Consideration").
The Stock Consideration and the Cash Consideration shall be referred to
collectively as the "Merger Consideration".
(b) Shares of ANA Common Stock that are held either by an ANA Company or any
ANA Company Subsidiary (other than shares held in a fiduciary capacity other
than for ANA or any other ANA Company) shall not be considered to be
outstanding and shall be cancelled (and not converted) by virtue of the Merger
at the Effective Time and without any further action by either Party.
(c) If, before the Effective Time, IBKC should split or combine the IBKC
Common Stock, or pay a stock dividend in IBKC Common Stock, or otherwise change
the IBKC Common Stock into any other securities, or make any other dividend or
distribution in respect of the IBKC Common Stock (other than normal cash
dividends as the same may be adjusted from time to time in accordance with or
not in violation of this Agreement), then the
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Exchange Ratio will be appropriately adjusted to reflect such split,
combination, dividend or other distribution or change.
(d) In lieu of issuing any fractional share of IBKC Common Stock, each
holder of ANA Common Stock who would otherwise be entitled thereto, after
aggregating into whole shares all fractional shares of IBKC Common Stock to
which such holder is entitled by virtue of the Merger, upon surrender of the
Certificates, will receive cash equal to such fractional share multiplied by
the Market Value.
(e) After the Effective Time, each holder of ANA Common Stock (other than
Dissenters Shares), upon surrender of such holder's Certificates in accordance
herewith, will be entitled to receive the shares of IBKC Common Stock and cash
into which such holder's shares have been converted, less any applicable tax
withholding. Until then, each Certificate will represent the number of whole
shares of IBKC Common Stock and cash into which the shares of ANA Common Stock
represented thereby were converted, except that IBKC may refuse to pay any
dividend or other distribution payable to holders of any unsurrendered
Certificates until surrender or if such dividend or distribution has reverted
in full ownership to IBKC under its Articles of Incorporation. Whether or not a
Certificate is surrendered, after the Effective Time it will not represent any
interest in any person other than IBKC.
(f) As soon as practicable after the Effective Time, but in no event later
than five Business Days following the Effective Time, IBKC or the Exchange
Agent shall mail to each holder of record of a Certificate or Certificates a
form of letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Exchange Agent) and instructions for use in
effecting the surrender of the Certificates in exchange for the Merger
Consideration into which the shares of ANA Common Stock represented by such
Certificate or Certificates shall have been converted pursuant to this Section
2.3. Upon proper surrender of a Certificate for exchange and cancellation to
the Exchange Agent, together with a properly completed letter of transmittal,
duly executed, the holder of such Certificate shall be entitled to receive in
exchange therefor, as applicable, (i) a certificate representing that number of
shares of IBKC Common Stock to which such former holder of ANA Common Stock
shall have become entitled pursuant to this Agreement and (ii) a check
representing that amount of cash to which such former holder of ANA Common
Stock shall have become entitled pursuant to this Agreement.
2.4 ANA Stock Options. Each option to purchase shares of ANA Common Stock
(other than the Option) which remains unexercised immediately prior to the
Effective Time, whether or not then vested or exercisable, shall be cancelled
and all rights thereunder shall be extinguished. As consideration for such
cancellation, ANA shall enter into an agreement with each holder of an ANA
Option to make a cash payment immediately prior to the Effective Time to each
such holder of an ANA Option of an amount determined by multiplying (x) each
share of ANA Common Stock subject to such holder's ANA Option by the sum of (a)
the Stock Consideration times the Market Value, and (b) the Cash Consideration,
with such quotient further multiplied by (y) the total number of shares of ANA
Common Stock subject to such holder's ANA Option, and then subtracting (z) the
aggregate exercise price of such ANA Option.
SECTION III.
CLOSING AND EFFECTIVE TIME
3.1 Time and Place of Closing. (a) The Closing will take place at 10:00 a.m.
on the last Business Day of the month in which occurs the last of (i) the date
that is the required number of days after the date of the order of the Federal
Reserve approving the Merger pursuant to the BHC Act, (ii) the effective date
(including expiration of any applicable waiting period) of the order of the
final federal or state regulatory agency approving the Merger or the expiration
of all required waiting periods after the filing of all required notices to all
federal or state regulatory agencies required to consummate the Merger, and
(iii) the date on which the shareholders of ANA
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approve this Agreement; or such other date as the Parties may mutually agree.
If all conditions in Section VIII hereof are satisfied, or waived by the Party
entitled to grant such waiver, at the Closing (i) the Parties shall each
provide to the other such proof of satisfaction of the conditions in Section
VIII as the Party whose obligations are conditioned upon such satisfaction may
reasonably request, (ii) the certificates, letters and opinions required by
Section VIII shall be delivered, (iii) the appropriate officers of the Parties
shall execute, deliver and acknowledge the Merger Agreement, and (iv) the
Parties shall take such further action including (without limitation) filing
the Merger Agreement as is required to consummate the transactions contemplated
by this Agreement.
(b) If on any date established for the Closing all conditions in Section
VIII hereof have not been satisfied or waived by each Party entitled to grant
such waiver, then either Party, on one or more occasions, may declare a delay
of the Closing of such duration, not exceeding 10 days, as the declaring Party
shall select, but no such delay shall extend beyond the last date set forth in
subparagraph (c) of Section 9.1, and no such delay shall interfere with the
right of any party to declare a termination pursuant to Section IX. The place
of Closing shall be at the office of IBKC set forth in Section 10.7.
3.2 Effective Time. The Merger shall become effective on the date of the
Closing at the time at which the Merger Agreement is accepted for filing by the
Louisiana Secretary of State (or such other time as is specified in the Merger
Agreement).
SECTION IV.
MANAGEMENT AND RELATED MATTERS FOLLOWING MERGER
4.1 Board of Directors of IBKC. At the Effective Time, by virtue of the
Merger, the Board of Directors of IBAC shall consist of those persons serving
as directors of IBKC immediately prior to the Effective Time.
4.2 Management of IBKC and LBA Bank.
(a) At the Effective Time, by virtue of the Merger, the officers of IBAC
shall consist of those persons serving as officers of IBKC immediately prior to
the Effective Time.
(b) As of the date hereof, IBERIABANK has entered into a one-year consulting
contract with Gerald Reaux, containing the provisions annexed hereto as Exhibit
III, to be effective as of the Effective Time.
4.3 Employees and Benefits.
(a) After the Effective Time, IBKC will perform the obligations of ANA under
the employment and severance contracts included in items 13, 14 and 15, as
applicable, of Schedule 5.11 to ANA's disclosure schedule. The officers of ANA
and LBA Bank who are parties to the employment or severance contracts included
in such disclosure schedule will, as of the Effective Time, have "Good Reason,"
as such term is defined in the employment and severance contracts, and,
accordingly, will be entitled to payments and benefits described in such
disclosure schedule, provided that, if necessary, any or all such contracts are
amended in a manner satisfactory to IBKC so that the provisions of Section 280G
of the Internal Revenue Code shall be inapplicable to such contracts or any
payment or payments thereunder or any other agreement. As detailed in such
disclosure schedule, no payments or benefits under any of such employment or
severance contracts shall constitute a parachute payment under Section 280G of
the Internal Revenue Code.
(b) ANA shall take all necessary action to cause the ANA ESOP to be
terminated as of the Effective Time. The Merger Consideration received by the
ESOP trustees in connection with the Merger with respect to the unallocated
shares of ANA Common Stock shall be first applied by the ESOP trustees to the
full repayment of the ESOP loan. The balance of the Merger Consideration
received by the ESOP trustees with respect to the unallocated shares of ANA
Common Stock shall be allocated as earnings to the accounts of all participants
in the ANA ESOP who have accounts remaining under the ANA ESOP (whether or not
such participants are then actively employed) and beneficiaries in proportion
to the account balances of such participants and beneficiaries, to the maximum
extent permitted under the Code and applicable law. The accounts of all
participants and
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beneficiaries in the ANA ESOP immediately prior to the Effective Time shall
become fully vested as of the Effective Time. As soon as practicable after the
date hereof, ANA shall file or cause to be filed all necessary documents with
the IRS for a determination letter for termination of the ANA ESOP as of the
Effective Time. As soon as practicable after the later of the Effective Time or
the receipt of a favorable determination letter for termination from the IRS,
the account balances in the ANA ESOP shall be distributed to participants and
beneficiaries or transferred to an eligible individual retirement account or
plan as a participant or beneficiary may direct. Prior to the Effective Time,
no prepayments shall be made on the ESOP loan and contributions to the ANA ESOP
and payments on the ESOP loan shall be made consistent with past practices on
the regularly scheduled payment dates.
(c) As soon as practicable after the Effective Time, the IBKC Companies
agree to provide the employees of the ANA Companies who remain employed after
the Effective Time (collectively, the "Transferred ANA Employees") with similar
types and levels of employee benefits maintained by the IBKC Companies for
their similarly situated employees. The Transferred ANA Employees shall be
given credit under each employee benefit plan, policy, program and arrangement
maintained by the IBKC Companies after the Closing for their service with the
ANA Companies prior to the Closing for all purposes, including severance,
vacation and sick leave, including eligibility to participate, vesting,
satisfying any waiting periods, evidence of insurability requirements,
seniority or the application of any pre-existing condition limitations, other
than benefit accrual under a defined benefit plan (as defined in Section 3(35)
of ERISA).
(e) The IBKC Companies shall make reasonable efforts within the parameters
of their health insurance plans to honor any deductible or out-of-pocket
expenses incurred under the applicable health insurance plans maintained by the
ANA Companies as of the Effective Time.
4.4 Indemnification and Insurance.
(a) IBKC acknowledges that by virtue of the Merger it will succeed to the
indemnification obligations of ANA under Article 8 of its Articles of
Incorporation.
(b) IBKC will indemnify and hold harmless the ANA Companies, and each of
their respective directors, officers, employees and agents, and each
controlling person of ANA within the meaning of the 1933 Act, against any
claims, suits, proceedings, investigations or other actions ("Claims"), and any
related losses, damages, costs, expenses, liabilities or judgments, whether
joint, several or solidary, insofar as they arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact made in the
Registration Statement or the Proxy Statement, or an omission or alleged
omission therefrom of a material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not
misleading, and will reimburse each such person promptly as incurred for legal
and other expenses reasonably incurred in connection with investigating or
defending any such Claims; provided, that IBKC will not be liable to the extent
that any such Claim arises out of or is based upon any such untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information furnished to IBKC by any ANA Company or, with
respect to any indemnified person, by that person.
(c) Any indemnified person wishing to claim indemnification under Section
4.4, upon learning of any claim, shall notify IBKC thereof as promptly as is
practicable, but the failure to so notify IBKC shall not relieve IBKC from any
obligation it has under this Section 4.4 except to the extent it is materially
and substantially prejudiced by such failure. IBKC shall have the right to
assume the defense thereof and shall not be liable for any expenses
subsequently incurred by such indemnified person in connection with the defense
thereof, except that if IBKC does not assume or continue to pursue such
defense, or counsel for the indemnified person advises in writing that there
are issues that raise conflicts of interest between IBKC and the indemnified
person, then the indemnified person may retain counsel satisfactory to such
person (and reasonably satisfactory to IBKC) at IBKC's expense, provided that
(i) IBKC shall not be obligated to pay for more than one counsel for all
indemnified persons in any jurisdiction except as may be required due to
conflicts of interest, (ii) the indemnified persons will cooperate (to
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the extent reasonably appropriate under the circumstances) in the defense of
any such claim, and (iii) IBKC shall not be liable for any settlement effected
without its prior written consent, which consent may be withheld unless such
settlement is reasonable in light of such claims, actions, suits, proceedings
or investigations against, and defenses available to, such Indemnified Party.
(d) ANA may, for premiums not to exceed $50,000, purchase a continuation of
its current directors and officers liability insurance for not more than three
years after the Merger.
(e) If IBKC or any of its successors or assigns (i) reorganizes or
consolidates with or merges into or enters into another business combination
transaction with any other person or entity and is not the resulting,
continuing or surviving corporation or entity of such reorganization,
consolidation, merger or transaction or (ii) liquidates, dissolves or transfers
all or substantially all of its properties and assets to any person or entity,
then, and in each such case, proper provisions will be made so that such
surviving corporation or transferee and its successors and assigns assume the
obligations of IBKC set forth in this Agreement.
SECTION V.
REPRESENTATIONS AND WARRANTIES OF IBKC AND ANA
Each of IBKC and ANA (each a "Warrantor") hereby represents and warrants to
the other of them, to the extent pertaining to itself, its Subsidiaries, and/or
its or their business or affairs, subject to the standard set forth in Section
5.23 hereof:
5.1 Organization, Standing, and Authority. Warrantor is a corporation duly
organized, validly existing, and in good standing under the laws of the State
of Louisiana, and is duly qualified to do business and is in good standing in
the States of the United States and foreign jurisdictions where its ownership
or leasing of property or the conduct of its business requires it to be so
qualified. Warrantor has corporate power and authority to carry on its business
as now conducted, to own, lease and operate its assets, properties and
business, and to execute and deliver, and to perform its obligations under,
this Agreement and the Stock Option Agreement. Warrantor is duly registered as
a bank holding company under the BHC Act. Warrantor has in effect all federal,
state, local and foreign governmental authorizations necessary for it to own or
lease its properties and assets and to carry on its business as it is now
conducted.
5.2 Capital Stock.
(a) The authorized, issued and outstanding capital stock of Warrantor as of
the date of this Agreement, the number of shares of Warrantor Common Stock
reserved for issuance under the Warrantor Stock Option Plans as of such date
and the number of shares of Warrantor Common Stock that are subject to
outstanding options under such Plans as of such date, are set forth in the
section of Schedule 5.2(a) attached hereto that pertains to Warrantor. All of
the issued and outstanding shares of Warrantor Capital Stock are duly and
validly authorized and issued and are fully paid and non-assessable. None of
the outstanding shares of Warrantor Capital Stock has been issued in violation
of any preemptive rights of the current or past shareholders of Warrantor.
(b) Except as Previously Disclosed or set forth in Section 5.2(a) or
Schedule 5.2(a), and except as provided under the Stock Option Agreement, there
are, as of the date of this Agreement and, will be at the Effective Time, no
shares of capital stock or other equity securities of ANA outstanding and, no
outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of the capital stock of ANA or
contracts, commitments, understandings or arrangements by which ANA is or may
be bound to issue additional shares of its capital stock or options, warrants
or rights to purchase or acquire any additional shares of its capital stock.
5.3 Warrantor Subsidiaries. Exhibit 21 to Warrantor's Annual Report on Form
10-K for the fiscal year ended December 31, 2001, as supplemented or updated by
information Previously Disclosed, lists all of the
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Warrantor Subsidiaries that are Significant Subsidiaries (as defined in Section
1.1) ("Warrantor Significant Subsidiaries") as of the date of this Agreement.
Each of the Warrantor Significant Subsidiaries that is a bank is an "insured
depository institution" as defined in the Federal Deposit Insurance Act and
applicable regulations thereunder. No equity securities of any of the Warrantor
Significant Subsidiaries are or may become required to be issued (other than to
Warrantor) by reason of any options, warrants, scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for, shares of the capital stock of any
Warrantor Significant Subsidiary, and there are no contracts, commitments,
understandings or arrangements by which any Warrantor Significant Subsidiary is
bound to issue (other than to Warrantor) additional shares of its capital stock
or options, warrants or rights to purchase or acquire any additional shares of
its capital stock. There are no contracts, commitments, understandings or
arrangements by which any of the Warrantor Companies is or may be bound to sell
or otherwise transfer any shares of the capital stock of any Warrantor
Significant Subsidiary, except for a transfer to any of the Warrantor
Companies, and there are no contracts, commitments, understandings or
arrangements relating to the rights of any Warrantor Company to vote or to
dispose of such shares. Except as provided in Louisiana Revised Statutes 6:262,
all of the shares of capital stock of each Warrantor Significant Subsidiary
held by Warrantor or a Warrantor Subsidiary are fully paid and non-assessable
and are owned by Warrantor or a Warrantor Subsidiary free and clear of any
claim, lien or encumbrance. Except as Previously Disclosed, each Warrantor
Significant Subsidiary is either a state bank, a state savings bank, a
corporation, or a limited liability company and is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated or organized, and is duly qualified to do business and in good
standing in the jurisdictions where its ownership or leasing of property or the
conduct of its business requires it to be so qualified. Each Warrantor
Significant Subsidiary has the corporate power and authority necessary for it
to own or lease its properties and assets and to carry on its business as it is
now being conducted, and has all federal, state, local and foreign governmental
authorizations necessary for it to own or lease its properties and assets and
to carry on its business as it is now being conducted.
5.4 Authority.
(a) The execution and delivery of this Agreement, the Merger Agreement and
the Stock Option Agreement and the consummation of the transactions
contemplated herein or therein, including the Merger, have been duly and
validly authorized by all necessary corporate action on the part of Warrantor,
subject in the case of ANA with respect to this Agreement and the Merger
Agreement, to the approval of the shareholders of ANA to the extent required by
applicable law. This Agreement and the Merger Agreement, subject to any
requisite approval by ANA's shareholders hereof and thereof, and the Stock
Option Agreement, represent valid and legally binding obligations of Warrantor,
enforceable against Warrantor in accordance with their respective terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights generally and except that the availability of the equitable
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding may be brought.
(b) Neither the execution and delivery of this Agreement, the Merger
Agreement or the Stock Option Agreement by Warrantor, nor the consummation by
Warrantor of the transactions contemplated herein or therein, nor compliance by
any Warrantor Company with any of the provisions hereof or thereof, will (i)
conflict with or result in a breach of any provision of any Warrantor Company's
articles of incorporation or by-laws, or (ii) except as Previously Disclosed,
constitute or result in the breach of any term, condition or provision of, or
constitute a default under, or give rise to any right of termination,
cancellation or acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon any property or assets of any of the Warrantor
Companies pursuant to, any note, bond, mortgage, indenture, license, agreement,
lease or other instrument or obligation to which any of them is a party or by
which any of them or any of their properties or assets may be subject, or (iii)
subject to receipt of the requisite approvals, authorizations, filings,
registrations and notifications referred to in Section 8.5 of this Agreement,
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to any of the Warrantor Companies or any of their properties or
assets.
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(c) Other than in connection or compliance with the provisions of applicable
state corporate and securities laws, the Securities Laws and the rules and
regulations thereunder, and other than consents, authorizations, approvals or
exemptions required from the Federal Reserve and the State Regulatory
Commissioners, no notice to, filing with, authorization of, exemption by or
consent or approval of any public body or authority is necessary for the
consummation by Warrantor of the Merger and the other transactions contemplated
by this Agreement, the Merger Agreement and the Stock Option Agreement.
(d) The Board of Directors of Warrantor (at a meeting duly called and held
prior to the execution of this Agreement) has by requisite vote (i) determined
that the Merger is in the best interests of Warrantor and its shareholders,
among others, (ii) authorized and approved this Agreement, the Merger
Agreement, the Stock Option Agreement and the transactions contemplated hereby
and thereby, including the Merger, (iii) in the case of ANA, directed that the
Merger be submitted for consideration to Warrantor's shareholders at the
Shareholders' Meeting, and (iv) approved execution of the Stock Option
Agreement in accordance with Section 134C(1)(b) of the BCL, with the result
that such Section will not apply to the execution and delivery by Warrantor of
the Stock Option Agreement or the issuance of shares of ANA Common Stock
pursuant to the Stock Option Agreement, the consummation of the Merger, or any
other transaction to be carried out pursuant to this Agreement, the Merger
Agreement or the Stock Option Agreement.
5.5 Financial Statements; Accounting. Warrantor has delivered to the other
Party, prior to the execution of this Agreement, Warrantor Financial Statements
as of and for the period ended June 30, 2002, and will promptly deliver when
available copies of Warrantor Financial Statements in respect of periods ending
after June 30, 2002. The Warrantor Financial Statements (as of the dates
thereof and for the periods covered thereby): (i) are (and, in the case of
Warrantor Financial Statements in respect of periods ending after June 30,
2002, will be) in accordance with the books and records of the Warrantor
Companies, and have been and will continue to be maintained in accordance with
GAAP (except as permitted by Regulation S-X of the SEC), in all material
respects, and (ii) except as permitted by Regulation S-X of the SEC, present
(and, in the case of Warrantor Financial Statements in respect of periods
ending after June 30, 2002, will present) fairly the consolidated financial
position and the consolidated results of operations, changes in stockholders'
equity and cash flows of the Warrantor Companies as of the dates and for the
periods indicated, in all material respects in accordance with GAAP applicable
to banks or bank holding companies applied on a basis consistent with prior
periods (subject in the case of interim financial statements to normal year-end
adjustments).
5.6 Absence of Undisclosed Liabilities. Except as Previously Disclosed, none
of the Warrantor Companies has any obligation or liability (contingent or
otherwise) that is material, either individually or in the aggregate, to the
financial condition, results of operations or, to the Warrantor Companies' best
knowledge, business prospects of the Warrantor Companies on a consolidated
basis, or that when combined with all similar obligations or liabilities would,
either individually or in the aggregate, be material to the financial
condition, results of operations or, to the Warrantor Companies' best
knowledge, business prospects of the Warrantor Companies on a consolidated
basis, except (i) as reflected in the Warrantor Financial Statements delivered
prior to the date of this Agreement, (ii) as reflected by this Agreement or
(iii) for commitments and obligations made, or liabilities incurred, since June
30, 2002 in the ordinary course of its business consistent with past practices.
5.7 Tax Matters.
(a) All material federal, state, local and foreign tax returns required to
be filed by or on behalf of any of Warrantor and all Subsidiaries which are
included in Warrantor's consolidated tax group for Federal income taxes have
been timely filed or requests for extensions have been timely filed, granted
and have not expired. All taxes shown on filed returns have been paid. There is
no audit examination, deficiency, refund litigation or matter in controversy
with respect to any taxes, except as reserved against in the Warrantor
Financial Statements or as Previously Disclosed. All taxes, interest, additions
and penalties which are material in amount and which are due with respect to
completed and settled examinations or concluded litigation have been paid or
adequately reserved for.
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(b) Except as Previously Disclosed, none of the Warrantor Companies has
executed an extension or waiver of any statute of limitations on the assessment
or collection of any tax due that is currently in effect.
(c) Adequate provision for any federal, state, local or foreign taxes due or
to become due for any of the Warrantor Companies for any period or periods
through and including June 30, 2002 has been made and is reflected in the
Warrantor Financial Statements, and will be made through and including the
Closing Date.
(d) Deferred taxes of the Warrantor Companies have been provided for in
accordance with GAAP.
5.8 Loans, Reserves, and Investments.
(a) All loans, discounts and financing leases (in which a Warrantor Company
is lessor) (collectively, "Credits") reflected in the Warrantor Financial
Statements were, as of the respective dates of such Financial Statements (i)
made for adequate consideration in the ordinary course of business, (ii)
evidenced by instruments that were true and genuine, and (iii) if secured,
secured by valid perfected security interests. Accurate lists of all such
Credits of the ANA Companies and of the investment portfolios of the ANA
Companies as of the date of the latest Financial Statements of ANA delivered on
or prior to the date of this Agreement have been made available to IBKC.
(b) The aggregate allowances for losses on Credits and other real estate and
foreclosed assets owned reflected on the latest Warrantor Financial Statement
delivered on or prior to the date of this Agreement were, as of the date of
such Financial Statements and will be at the Closing date, adequate in
accordance with regulatory guidelines and GAAP in all material respects.
5.9 Properties and Insurance. Except as Previously Disclosed or reserved
against in the Warrantor Financial Statements, the Warrantor Companies have
good and marketable title, free and clear of all liens, encumbrances, charges,
defaults or equities of any character, to all of the material properties and
assets, tangible or intangible, reflected in the Warrantor Financial Statements
as being owned by the Warrantor Companies as of the dates thereof. To the
knowledge of Warrantor's management, (a) all buildings and all fixtures,
equipment and other property and assets which are material to its business on a
consolidated basis and are held under leases or subleases by any of the
Warrantor Companies are held under valid leases or subleases enforceable in
accordance with their respective terms (except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally and except that the
availability of the equitable remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceedings
may be brought); and (b) the policies of fire, theft, liability, fidelity and
other insurance maintained with respect to the assets or businesses of the
Warrantor Companies provide adequate coverage against loss.
5.10 Compliance with Laws. Except as Previously Disclosed, each of the
Warrantor Companies:
(a) Is in compliance in all material respects with all laws, regulations,
reporting and licensing requirements and orders applicable to its business or
to the employees conducting its business;
(b) Has received no notification or communication from any agency or
department of federal, state or local government (including the Federal
Reserve, State Regulatory Commissioners and other bank, insurance and
securities regulatory authorities) or the staff thereof (i) threatening to
revoke any license, franchise, permit or governmental authorization which is
material, either individually or in the aggregate, to the financial condition,
results of operations or, to the Warrantor Companies' best knowledge, business
prospects of the Warrantor Companies on a consolidated basis or the ability of
Warrantor to consummate the transactions contemplated under this Agreement, the
Merger Agreement or the Stock Option Agreement, under the terms hereof and
thereof, or (ii) requiring any of the Warrantor Companies (or any of their
officers, directors or controlling persons) to enter into a cease and desist
order, agreement or memorandum of understanding (or requiring the board of
directors thereof to adopt any resolution or policy); and
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(c) Has complied in all material respects with the Community Reinvestment
Act ("CRA") and the rules and regulations thereunder, and has a CRA rating of
not less than "satisfactory".
5.11 Employee Benefit Plans.
(a) (i) Warrantor has delivered or made available to the other Party, prior
to the execution of this Agreement, copies of each pension, retirement, profit
sharing, supplemental or excess retirement, stock option, stock purchase,
savings, employee stock ownership, restricted stock, phantom stock, stock
ownership, life insurance, disability, vacation pay, severance pay (including,
without limitation change of control or golden parachute arrangements),
incentive, deferred compensation, bonus or benefit arrangement, health or
hospitalization program, fringe benefit or perquisite arrangement or other
similar plan as in effect on the date of this Agreement, including, without
limitation, any "employee benefit plan", as that term is defined in Section
3(3) of ERISA, in respect of any of the present or former directors, officers,
employees or independent contractors of, or dependents, spouses or other
beneficiaries of any of such directors, officers, employees or independent
contractors of, any of the Warrantor Companies (collectively, the "Warrantor
Benefit Plans"), and (ii) ANA has delivered or made available to IBKC, prior to
the execution of this Agreement, copies of each employment or consulting
agreement as in effect on the date of this Agreement which provides any benefit
or perquisites to or in respect of any of the present or former directors or
officers of, or dependents, spouses or other beneficiaries of any of such
directors or officers of, any of the ANA Companies, which employment and
consulting agreements are, with respect to ANA, included in the term "Warrantor
Benefit Plans" as defined above. Any of the Warrantor Benefit Plans which is an
"employee pension benefit plan," as that term is defined in Section 3(2) of
ERISA, is referred to herein as a "Warrantor ERISA Plan". No Warrantor Company
has participated in or been a member of, and no Warrantor Benefit Plan is or
has been, a multi-employer plan within the meaning of Section 3(37) of ERISA.
Except as Previously Disclosed, the Warrantor Benefit Plans of ANA and its
Subsidiaries are terminable on their terms without penalty or payment except
for accrued and vested benefits thereunder.
(b) All Warrantor Benefit Plans comply in all material respects with the
applicable provisions of ERISA and the Code, and any other applicable laws,
rules and regulations the breach or violation of which could result in a
liability, either individually or in the aggregate, material to the financial
condition, results of operations or prospects of the Warrantor Companies on a
consolidated basis. With respect to the Warrantor Benefit Plans, no event has
occurred and, to the best knowledge of Warrantor's management, there exists no
condition or set of circumstances, in connection with which any of the
Warrantor Companies could be subject to any liability (except liability for
severance payments benefit claims, Pension Benefit Guaranty Corporation
premiums, funding obligations payable in the ordinary course and distributions
upon termination of the ANA ESOP). No notice of a "reportable event," as that
term is defined in Section 4043 of ERISA, for which the 30-day reporting
requirement has not been waived has been required to be filed for any Warrantor
ERISA Plan which is subject to Title IV of ERISA within the 12-month period
ending on the date of this Agreement. None of the Warrantor Companies has
provided, or is required to provide, security to any Warrantor ERISA Plan which
is subject to Title IV of ERISA pursuant to Section 401(a)(20) of the Internal
Revenue Code.
(c) Except as Previously Disclosed, no Warrantor ERISA Plan which is subject
to Title IV of ERISA has any "unfunded current liability," as that term is
defined in Section 302(d)(8)(A) of ERISA, and the present fair market value of
the assets of each such plan exceeds the plan's "benefit liabilities," as that
term is defined in Section 4001(a)(16) of ERISA, when determined under
actuarial factors that would apply if the plan terminated as of the date of
this Agreement in accordance with all applicable legal requirements.
5.12 Material Contracts. Except as Previously Disclosed, none of the
Warrantor Companies, nor any of their respective assets, businesses or
operations, as of the date of this Agreement, is a party to, or is bound or
affected by, or receives benefits under, any contract or agreement or amendment
thereto that in each case would be required to be filed as an exhibit to a Form
10-K or Form 10-Q filed by Warrantor as of the date of this Agreement that has
not been filed as an exhibit.
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5.13 Material Contract Defaults. None of the Warrantor Companies is in
default under any contract, agreement, commitment, arrangement, lease,
insurance policy or other instrument to which it is a party, by which its
respective assets, business or operations may be bound or affected, or under
which it or its respective assets, business or operations receives benefits,
and there has not occurred any event that, with the lapse of time or the giving
of notice or both, would constitute such a default.
5.14 Legal Proceedings. Except as Previously Disclosed, there are no
actions, suits or proceedings instituted or pending or, to the best knowledge
of Warrantor's management, threatened against any of the Warrantor Companies,
or affecting any property, asset, interest or right of any of them.
5.15 Absence of Certain Changes or Events. Since June 30, 2002, the
Warrantor Companies, taken as a whole on a consolidated basis, have not
suffered any change in any respect that has had or is likely to have a
Warrantor Material Adverse Effect.
5.16 Reports. Since January 1, 1999, or, with respect to each Warrantor
Subsidiary, the date of its acquisition by Warrantor if later than January 1,
1999, each of the Warrantor Companies has filed all reports and statements,
together with any amendments required to be made with respect thereto, that it
was required to file with (i) the SEC, including, but not limited to, Forms
10-K, Forms 10-Q, Forms 8-K and proxy statements, (ii) the Federal Reserve,
(iii) the OTS, (iv) the Federal Deposit Insurance Corporation, and (v) any
applicable state banking, insurance, securities or other regulatory
authorities. As of their respective dates (and without giving effect to any
amendments or modifications filed after the date of this Agreement with respect
to reports and documents filed before the date of this Agreement), each of such
reports and documents, including the financial statements, exhibits and
schedules thereto, complied in all material respects with all of the statutes,
rules and regulations enforced or promulgated by the authority with which they
were filed and did not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made
therein in light of the circumstances under which they were made not
misleading, except as Previously Disclosed.
5.17 Statements True and Correct. None of the information supplied or to be
supplied by Warrantor for inclusion in (i) the Registration Statement to be
filed by IBKC with the SEC in connection with the IBKC Common Stock to be
issued in the Merger, (ii) the Proxy Statement to be mailed to ANA's
shareholders in connection with the Shareholders Meeting, and (iii) any other
documents to be filed with the SEC or any other Regulatory Authority in
connection with the transactions contemplated hereby, will, at the respective
times such documents are filed, and, in the case of the Registration Statement,
when it becomes effective and, with respect to the Proxy Statement, when first
mailed to the shareholders of ANA, be false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
the statements therein not misleading, or, in the case of the Proxy Statement
or any amendment thereof or supplement thereto, at the time of the Shareholders
Meeting, be false or misleading with respect to any material fact, or omit to
state any material fact necessary to make the statements therein in light of
the circumstances under which they were made not misleading. All documents that
Warrantor is responsible for filing with the SEC or any other Regulatory
Authority in connection with the transactions contemplated hereby, by the
Merger Agreement or by the Stock Option Agreement, will comply in all material
respects with the provisions of applicable law including applicable provisions
of the Securities Laws.
5.18 Environmental Matters.
(a) To the best knowledge of Warrantor's management, Warrantor and each
Warrantor Subsidiary (for purposes of this Section 5.18, the term "Warrantor
Subsidiary" shall include small business investment corporations and entities
that invest in unaffiliated companies in the ordinary course of business in
which Warrantor owns or controls 5% or more of the outstanding equity
securities either directly or through an unbroken chain of entities as to each
of which 5% or more of the outstanding equity securities is owned directly or
indirectly by Warrantor), the Participation Facilities, the Loan Properties and
the Trust Properties (each as defined below) are, and have been, in compliance
with all applicable laws, rules, regulations and standards, and all
requirements of the United States Environmental Protection Agency ("EPA") and
of state and local agencies with jurisdiction over pollution or protection of
health or the environment.
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(b) To the best knowledge of Warrantor's management, there is no suit,
claim, action or proceeding, pending or threatened, before any court,
governmental agency, board or other forum pursuant to which Warrantor or any of
the Warrantor Subsidiaries or any Loan Property, Participation Facility or
Trust Property (or in respect of such Loan Property, Participation Facility or
Trust Property) has been or, with respect to threatened proceedings may be,
named as a defendant (i) for alleged noncompliance (including by any
predecessor) with any environmental law, rule or regulation or (ii) relating to
the release into the environment of any Hazardous Material (as defined below)
or oil, whether or not occurring at or on any site owned (including as
trustee), leased or operated by it or any of its subsidiaries or any Loan
Property, Participation Facility or Trust Property.
(c) To the best knowledge of Warrantor's management, there is no reasonable
basis for any suit, claim, action or proceeding of a type described in Section
5.18(b).
(d) During the period of (i) Warrantor's or any of the Warrantor
Subsidiaries' ownership (including as trustee) or operation of any of their
respective current properties, (ii) Warrantor's or any of the Warrantor
Subsidiaries' participation in the management of any Participation Facility,
(iii) Warrantor's or any of the Warrantor Subsidiaries' holding of a security
interest in a Loan Property, or (iv) Warrantor or any of the Warrantor
Subsidiaries acting as a trustee or fiduciary with respect to a Trust Property,
to the best knowledge of Warrantor's management, there has been no release of
Hazardous Material or oil in, on, under or affecting such property,
Participation Facility, Loan Property or Trust Property. Prior to the period of
(w) Warrantor's or any of the Warrantor Subsidiaries' ownership (including as
trustee) or operation of any of their respective current properties, (x)
Warrantor's or any of the Warrantor Subsidiaries' participation in the
management of any Participation Facility, (y) Warrantor's or any of the
Warrantor Subsidiaries acting as trustee or other fiduciary with respect to
Trust Property, or (z) Warrantor's or any of the Warrantor Subsidiaries'
holding of a security interest in a Loan Property, to the best knowledge of
Warrantor's management, there was no release of Hazardous Material or oil in,
on, under or affecting any such property, Participation Facility, Loan Property
or Trust Property.
(e) The following definitions apply for purposes of this Section 5.18: (i)
"Loan Property" means any property in which Warrantor (or a Warrantor
Subsidiary) holds a security interest and, where required by the context,
includes the owner or operator of such property, but only with respect to such
property; (ii) "Participation Facility" means any property in which Warrantor
(or a Warrantor Subsidiary) participates in the management of such property
and, where required by the context, includes the owner or operator of such
property, but only with respect of such property; (iii) "Trust Property" means
any property with respect to which Warrantor (or a Warrantor Subsidiary) acts
or has acted as a trustee or other fiduciary, directly or indirectly, and
includes any trust or similar legal vehicle that owns or controls (or that
owned or controlled) such property and, where required by the context, includes
the trustee or other fiduciary, but only with respect to such property; and
(iv) "Hazardous Material" means any pollutant, contaminant or hazardous
substance within the meaning of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., or any similar
federal, state or local law.
5.19 Knowledge as to Conditions. On the date of this Agreement, Warrantor
knows of no reason why the approvals, authorizations, filings, registrations
and notices contemplated by Section 8.5 should not be obtained without the
imposition of any material and adverse condition or restriction or why the
accountants' letters referred to in Section 8.7 or the Tax Opinion referred to
in Section 7.3 cannot be obtained.
5.20 Labor Matters. Neither Warrantor nor any of the Warrantor Companies is
a party to, or is bound by, any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor organization, nor
is Warrantor or any of the Warrantor Companies the subject of any proceeding
asserting that Warrantor or any Warrantor Company has committed an unfair labor
practice or seeking to compel Warrantor or any Warrantor Company to bargain
with any labor union or labor organization as to wages and conditions of
employment, nor is there any strike or other labor dispute involving Warrantor
or any of the Warrantor Companies pending or threatened.
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5.21 Fairness Opinion. ANA has received the written opinion of ANA's
financial advisor, rendered to the Board of Directors of ANA and dated the date
of this Agreement, that subject to the various assumptions and limitations set
forth in that opinion, the Merger Consideration proposed to be received by
holders of ANA Common Stock is fair to such holders from a financial point of
view. A copy of such opinion shall be furnished to IBKC for inspection purposes
only.
5.22 Access to Funds. As of the date of this Agreement, IBKC has, and on the
Closing will have, access to all funds necessary to consummate the Merger and
pay the aggregate Cash Consideration, and IBKC will meet its obligations to pay
the aggregate Merger Consideration. IBKC will need, and has the capacity, to
incur borrowings for the express purpose of funding all or part of the
aggregate Cash Consideration, and IBKC does not need to raise additional
capital to consummate the transactions contemplated by this Agreement.
5.23 Materiality. No representation or warranty by a Warrantor contained in
this Section V shall be deemed untrue or incorrect, and no party hereto shall
be deemed to have breached a representation or warranty, on account of the
existence of any fact, circumstance or event unless, as a direct or indirect
consequence of such fact, circumstance or event, individually or taken together
with all other facts, circumstances or events inconsistent with any paragraph
of Section V, as applicable, there is or is reasonably likely to be a Material
Adverse Effect, except that the representations and warranties in Sections 5.1,
5.2 and 5.4 shall be true and correct in all respects. ANA's representations,
warranties and covenants contained in this Agreement shall not be deemed to be
untrue or breached as a result of effects arising solely from actions taken in
compliance with this Agreement or a written request of IBKC.
SECTION VI.
COVENANTS AND AGREEMENTS
Each Party hereby covenants and agrees with the other Party as follows:
6.1 Conduct of Business--Negative Covenants. From the date of this Agreement
until the earlier of the Effective Time or the termination of this Agreement,
ANA will not do, or agree or commit to do, and will cause each of its
Subsidiaries not to do or agree to commit to do, any of the following without
the prior written consent of a duly authorized officer of IBKC, which consent
will not be unreasonably withheld:
(a) Except as Previously Disclosed or as expressly contemplated by this
Agreement, amend its articles of incorporation or association or by-laws, or
(b) Impose, or suffer the imposition, on any share of stock held by it or by
any of its Subsidiaries, of any material lien, charge or encumbrance, or permit
any such lien, charge or encumbrance to exist, or
(c) Except as expressly permitted in this Agreement or in connection with
(1) the use of Common Stock by optionees to pay an option exercise price or to
satisfy tax liabilities under the ANA Stock Option Plan and (2) the repurchase
of ANA Common Stock in accordance with the Stock Option Agreement, repurchase,
redeem, or otherwise acquire or exchange, directly or indirectly, any shares of
its capital stock or any securities convertible into any shares of its capital
stock, or
(d) Except as expressly contemplated by this Agreement or as Previously
Disclosed, acquire direct or indirect control over any corporation,
association, firm or organization, other than in connection with (i) internal
reorganizations or consolidations involving existing Subsidiaries, (ii) good
faith foreclosures in the ordinary course of business, (iii) acquisitions of
control by a banking Subsidiary in a bona fide fiduciary capacity, (iv)
investments made by small business investment corporations or by Subsidiaries
that invest in unaffiliated companies in the ordinary course of business, or
(v) the creation of new Subsidiaries organized to conduct or continue
activities otherwise permitted by this Agreement, or
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(e) Except as Previously Disclosed, ANA will not sell or otherwise dispose
of, or permit any of its Subsidiaries to sell or otherwise dispose of: (i) any
shares of capital stock of ANA or any Subsidiary of ANA (except for shares of
stock sold or otherwise transferred to IBKC or any of its Subsidiaries or
shares which may be issued upon the exercise and otherwise under the terms of
any of the 245,469 stock options outstanding, pursuant to the ANA Stock Option
Plan, on the date hereof), (ii) any substantial part of the assets or earning
power of such Party or any Subsidiary of such Party, or (iii) any asset other
than in the ordinary course of business for reasonable and adequate
consideration, or
(f) Except as Previously Disclosed, incur, or permit any of its Subsidiaries
to incur, any additional material debt obligation or other material obligation
for borrowed money (other than (i) in replacement of existing short-term debt
with other short-term debt, (ii) financing of banking related Subsidiary
activities consistent with past practices, (iii) indebtedness of any of its
Companies to another of its Companies or (iv) indebtedness of any of its
Companies to any of their respective affiliates), except in the ordinary course
of the business of such Party and its Subsidiaries consistent with past
practices (and such ordinary course of business shall include, but shall not be
limited to, the creation of deposit liabilities, purchases of federal funds,
sales of certificates of deposit and entry into repurchase agreements), or
(g) Grant any increase in compensation or benefits to its employees or to
its officers or employees; pay any bonus not in accordance with past practice
and the provisions of any applicable program or plan of the ANA Companies as in
effect prior to the date of this Agreement and which has been Previously
Disclosed, enter into any severance agreements with any of its directors or
officers or the directors or officers of any Subsidiary; grant any increase in
fees or other increases in compensation or other benefits to any of its present
or former directors, or effect any change in retirement benefits for any class
of its employees or officers (unless such change is required by applicable law
or, in the opinion of counsel, is necessary or advisable to maintain the tax
qualification of any plan under which the retirement benefits are provided)
that would increase the retirement benefit liabilities of the ANA Companies on
a consolidated basis, except that ANA may (A) pay up to $90,000 (or such
greater amount to which IBKC may consent) as retention bonuses to employees and
in amounts mutually agreed upon by ANA and IBKC, (B) under its management bonus
program pay amounts accrued and to be accrued monthly in amounts not in excess
of monthly accruals since January 1, 2002 on the Financial Statements of ANA,
but only immediately prior to the Effective Time, (C) pay its Christmas bonuses
in an aggregate amount not to exceed the aggregate amount accrued on the
Financial Statements of ANA for Christmas bonuses for 2002, (D) increase the
compensation of non-exempt employees consistent with past practice, and (E)
increase the compensation of exempt employees to the extent consistent with
past practice and in an individual or aggregate amount not to exceed 4% of the
annual rate of total compensation of any person or to all non-exempt employees.
(h) Except as contemplated by this Agreement, the Merger Agreement or any of
the agreements, documents or instruments contemplated hereby or thereby, or
except as Previously Disclosed, amend any existing employment, severance or
similar contract between such Party or any Subsidiary thereof (unless such
amendment is required by law) or enter into any new contract with any person, or
(i) Except as contemplated by this Agreement, the Merger Agreement or any of
the agreements, documents or instruments contemplated hereby or thereby, adopt
any new employee benefit plan of ANA or any ANA Subsidiary or make any material
change in or to any existing employee benefit plan of such Party or any
Subsidiary thereof other than (i) as Previously Disclosed or (ii) any such
change that is required by law or that, in the opinion of counsel, is necessary
or advisable to maintain the tax qualified status of any such plan.
6.2 Conduct of Business--Affirmative Covenants. Unless the prior written
consent of the other Party shall have been obtained, except as otherwise
contemplated or permitted hereby or Previously Disclosed, each Party shall and
shall cause its Subsidiaries: to operate its business only in the ordinary
course of business of such Party and its Subsidiaries consistent with past
practices, to preserve intact its business organizations and assets and
maintain its rights and franchises, and to take no action which would (i)
adversely affect the ability of any of
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them to obtain any necessary approvals of Regulatory Authorities required for
the transactions contemplated hereby without imposition of a condition or
restriction of the type referred to in the second sentence of Section 8.5 of
this Agreement, (ii) adversely affect the ability of such Party to perform its
obligations under this Agreement, the Merger Agreement and Stock Option
Agreement, or (iii) cause or permit a breach of any of its covenants or cause
or permit any representation or warranty of it to become untrue in any material
respect, as if each such representation and warranty were continuously made
from the date hereof.
6.3 Adverse Changes in Condition. Each Party shall give written notice
promptly to the other Party concerning (i) any event which has had, or is
reasonably likely to have, a Material Adverse Effect on such Party, or (ii) the
occurrence or impending occurrence of any event or circumstance known to such
Party which would cause or constitute a material breach of any of the
representations, warranties or covenants of such Party contained herein or that
would reasonably be expected to materially and adversely affect the timely
consummation of the transactions contemplated hereby or under the Merger
Agreement or Stock Option Agreement. Each Party shall use its reasonable best
efforts to prevent or to promptly remedy the same.
6.4 Investigation and Confidentiality. Prior to the Effective Time, each
Party will keep the other Party promptly advised of all material developments
relevant to its business and to the consummation of the Merger and may make or
cause to be made such investigation, if any, of the business, properties,
operations and financial and legal condition of the other Party and its
Subsidiaries as such Party reasonably deems necessary or advisable to
familiarize itself and its advisors with such business, properties, operations
and condition, provided that such investigation shall be reasonably related to
the transactions contemplated hereby and shall not interfere unnecessarily with
normal operations. Each Party agrees to furnish the other Party and the other
Party's respective advisors with such financial and operating data and other
information with respect to its business, properties and employees as the other
Party shall from time to time reasonably request. No investigation by one Party
shall affect the representations and warranties of the other Party and, subject
to Section 9.3 of this Agreement, each such representation and warranty shall
survive any such investigation. Each Party shall maintain the confidentiality
of all confidential information furnished to it by the other Party in
accordance with the terms of the confidentiality agreement dated November 16,
2001, as supplemented on November 19, 2001, between the Parties (the
"Confidentiality Agreement").
6.5 Reports. Each Party shall file all reports required to be filed by it
with the SEC and the Federal Reserve between the date of this Agreement and the
Effective Time and shall deliver to the other Party copies of all such reports
promptly after the same are filed. Each Party shall cause each of its
Subsidiaries that is a depository institution to file all reports required to
be filed with the Federal Deposit Insurance Corporation, the Office of the
Comptroller of the Currency, the Federal Reserve, the OTS and any applicable
State Regulatory Commissioner.
6.6 Dividends.
(a) From the date of this Agreement to the earlier of the Effective Time or
the termination of this Agreement, ANA will not declare or pay any dividend or
other distribution to its shareholders except regular quarterly cash dividends
on the shares of ANA Common Stock, at a rate not in excess of $.15 per share,
and declared and paid at the times such regular dividends were previously
declared and paid.
(b) From the date of this Agreement to the earlier of the Effective Time or
the termination of this Agreement, no Party shall, without the prior written
consent of the other Party, make any changes in its dividend record or payment
dates, except as required to comply with paragraph (c) below.
(c) The Parties shall coordinate with one another as to the declaration and
payment of cash dividends on the shares of IBKC Common Stock and ANA Common
Stock to be declared in 2002 and 2003 so as to ensure that IBKC and ANA have
declared, with the record dates prior to the Effective Time, the same number of
quarterly dividends from September 1, 2002 through the Effective Time.
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6.7 Capital Stock. Except for or as otherwise permitted in or contemplated
by this Agreement (including Section 6.1(e) hereof), the Merger Agreement or
the Stock Option Agreement, or as Previously Disclosed, without the prior
written consent of IBKC, from the date of this Agreement to the earlier of the
Effective Time or the termination of this Agreement, ANA shall not, and shall
not enter into any agreement to, issue, sell, or otherwise permit to become
outstanding any additional shares of ANA Common Stock or any other capital
stock of ANA, or any stock appreciation rights, or any option, warrant,
conversion or other right to acquire any such stock, or any security
convertible into any such stock.
6.8 Agreement of Affiliates. ANA shall deliver to IBKC, no later than 30
days after the date of this Agreement, a letter identifying each person whom it
reasonably believes is an "affiliate" of ANA for purposes of Rule 145 under the
1933 Act. Thereafter and until the date on which the Merger is approved by the
Federal Reserve, ANA shall identify to IBKC each additional person whom ANA
reasonably believes to have thereafter become an "affiliate". ANA shall use its
best efforts to cause each person who is identified as an "affiliate" of ANA
pursuant to the two immediately preceding sentences to deliver to IBKC, not
later than the date on which the Merger is approved by the Federal Reserve, a
written agreement, substantially in the form of Exhibit IV.
6.9 Certain Actions.
(a) Without limiting ANA's other obligations hereunder, ANA agrees that,
from the date of this Agreement until the earlier of the Effective Time or the
termination of this Agreement, neither it nor any of its Subsidiaries or
affiliates, nor any of the officers and directors of it or its Subsidiaries or
affiliates shall, and that it shall cause its and its Subsidiaries' and
affiliates' employees, agents and representatives (including any investment
banker, attorney or accountant retained by it or any of its Subsidiaries) not
to, directly or indirectly, (i) initiate, solicit, encourage or knowingly
facilitate any inquiries or the making of any Acquisition Proposal, (ii) have
any discussion with or provide any confidential information or data to any
Person relating to an Acquisition Proposal, or engage in any negotiations
concerning an Acquisition Proposal, or knowingly facilitate any effort or
attempt to make or implement an Acquisition Proposal, (iii) approve or
recommend, or propose publicly to approve or recommend, any Acquisition
Proposal or (iv) approve or recommend, or propose to approve or recommend, or
execute or enter into, any letter of intent, agreement in principle, merger
agreement, acquisition agreement, option agreement or other similar agreement
or propose publicly or agree to do any of the foregoing related to any
Acquisition Proposal.
(b) Notwithstanding the foregoing, ANA shall be permitted (i) to the extent
applicable, to comply with Rule 14d-9 and Rule 14e-2 under the Exchange Act
with regard to an Acquisition Proposal and (ii) to engage in any discussions or
negotiations with, or provide any information to, any Person in response to an
unsolicited bona fide written Acquisition Proposal by any such Person, if and
only to the extent that, in any such case referred to in clause (ii), (A) its
Shareholders Meeting shall not have occurred, (B), it has received an
unsolicited bona fide written Acquisition Proposal from a third party and its
Board of Directors concludes in good faith that such Acquisition Proposal
constitutes a Superior Proposal, (C) its Board of Directors, after consultation
with outside counsel, determines in good faith that such action is necessary
for the Board of Directors to comply with its fiduciary duties under applicable
law, (D) prior to providing any information or data to any Person in connection
with an Acquisition Proposal by any such Person, its Board of Directors
receives from such Person an executed confidentiality agreement having
provisions that are customary in such agreements, as advised by counsel,
provided that if such confidentiality agreement contains provisions that are
less restrictive with respect to disclosure of confidential information of ANA
than the comparable provision, or omits restrictive provisions with respect to
disclosure of confidential information of ANA, contained in the Confidentiality
Agreement, then the Confidentiality Agreement will be deemed to be amended to
contain only such less restrictive provisions or to omit such restrictive
provisions, as the case may be, and (E) prior to providing any information or
data to any Person or entering into discussions or negotiations with any
Person, ANA notifies IBKC promptly (within at least two days) of such
inquiries, proposals or offers received by, any such information requested
from, or any such discussions or negotiations sought to be initiated or
continued with, any of its representatives, indicating, in connection with such
notice, the name of such Person and the material terms and conditions of any
inquiries, proposals or offers.
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(c) ANA agrees that it will promptly keep IBKC informed of the status and
terms of any such proposals or offers (promptly providing copies of such
proposals and changes therein) and the status and terms of any such discussions
or negotiations and will not enter into any confidentiality arrangements that
prevent such activities. Before ANA may take any action specified in clause
(b)(ii) above, ANA shall give IBKC at least two (2) business days' notice, and
shall not have received a proposal from IBKC which is superior to the third
party proposal under consideration.
(d) ANA agrees that it will, and will cause its officers, directors and
representatives to, immediately cease and cause to be terminated any
activities, discussions or negotiations existing as of the date of this
Agreement with any parties conducted heretofore with respect to any Acquisition
Proposal, informing them that the Board of Directors no longer seeks the making
of any Acquisition Proposals.
(e) ANA agrees that it will use reasonable best efforts to promptly inform
its directors, officers, key employees, agents and representatives of the
obligations undertaken in this Section 6.9. Nothing in this Section 6.9 shall
(x) permit ANA to terminate this Agreement (except as specifically provided in
Article IX hereof), (y) affect any other obligation of ANA under this Agreement
or (z) except with regard to an Acquisition Proposal determined by the Board of
Directors of ANA to be a Superior Proposal, permit ANA to submit to the vote of
its stockholders any Acquisition Proposal other than the Merger.
6.10 Agreement as to Efforts to Consummate. Subject to the terms and
conditions of this Agreement and its fiduciary duties under applicable law,
each of the Parties agrees to use its reasonable best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things,
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective, as soon as practicable after the date of this
Agreement, the transactions contemplated by this Agreement, including, without
limitation, using its best efforts to lift or rescind any injunction or
restraining order or other order adversely affecting the ability of the Parties
to consummate the transactions contemplated hereby. Each of the Parties shall
use, and shall cause each of its Subsidiaries to use, its reasonable best
efforts to obtain consents of all third parties and governmental bodies
necessary or desirable for the consummation of the transactions contemplated by
this Agreement. This section shall not require either Party to waive any
condition to such Party's obligation to consummate the Merger.
6.11 Operating Functions. The ANA Companies will cooperate with IBKC in
connection with planning for the efficient and orderly combination of the
parties and the operation of LBA Bank after the Merger, and in the
consolidation of appropriate operating functions to be effective on the
Effective Date, provided that this covenant shall not require any action that,
in the opinion of ANA's Board, would adversely affect the operations of any ANA
Company if the Merger were not consummated.
6.12 Issuance of IBKC Stock. IBKC shall, prior to the Closing, take such
action as is required to permit the issuance of the IBKC Common Stock issuable
to the shareholders of ANA pursuant to the Merger, and to permit such stock to
be approved for listing and quotation on the NASDAQ Stock Market.
6.13 Support Commitments. ANA has delivered to IBKC on the date of this
Agreement Support Commitments in the form of Exhibit V from the directors and
executive officers of ANA.
6.14 Bank Merger. ANA will, and will cause LBA Bank to, take such action as
IBKC shall deem necessary or advisable so that, on a date after the Effective
Time determined by IBKC, LBA Bank will merge into IBERIABANK.
6.15 Exemption from Liability Under Section 16(b). Schedule 6.15 sets forth
the names of ANA Insiders (as defined below) and their corresponding shares of
ANA Common Stock and ANA Options for which such individuals are entitled to
receive the Merger Consideration. The Board of Directors of IBKC, or a
committee of "Non-Employee Directors" thereof (as such term is defined for
purposes of Rule 16b-3(d) under the 1934 Act), shall adopt a resolution
providing that the receipt by ANA Insiders of the Merger Consideration in
exchange for
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their respective shares of ANA Common Stock and ANA Options as set forth in
Schedule 6.15, in each case pursuant to the transactions contemplated hereby
and to the extent such securities are listed in the Section 16 Information, is
intended to be exempt from liability pursuant to Section 16(b) under the 1934
Act. "Section 16 Information" shall mean information accurate in all material
respects regarding ANA Insiders, the number of shares of ANA Common Stock held
by each such ANA Insider and expected to be exchanged for the Merger
Consideration, and the number and description of the ANA Options held by each
such ANA Insider. "ANA Insiders" shall mean those officers and directors of ANA
who are subject to the reporting requirements of Section 16(a) of the 1934 Act
and who are listed in the Section 16 Information.
6.16 Organization of IBAC. IBKC shall cause IBAC to be organized under the
laws of Louisiana. The Board of IBAC shall approve this Agreement and the
Merger, whereupon IBAC shall become a party to, and be bound by, this
Agreement, and IBKC shall adopt and ratify this Agreement in its capacity as
the sole shareholder of IBAC.
6.17 ANA Deposits. ANA will not increase the rate paid on its deposits above
those currently in effect except to the extent any increased rate is no higher
than the second highest rate then being paid by its competitors in ANA's
market, or offer or give any premium for any deposit other than one no higher
in value than the second highest premium offered by competitors in its
marketplace.
SECTION VII.
ADDITIONAL AGREEMENTS
7.1 Registration Statement; Shareholder Approval.
(a) The Parties shall cooperate in the preparation of the Registration
Statement. IBKC shall, as soon as practicable, file it with the SEC, and the
Parties shall use their best efforts to cause it to become effective under the
1933 Act. IBKC will take, and ANA will cooperate with it in connection with,
any action required to be taken under the applicable state Blue Sky or
securities laws in connection with the issuance of shares of IBKC Common Stock
upon consummation of the Merger. Each party shall furnish all information
concerning it and the holders of its capital stock as the other Party may
reasonably request in connection with such action.
(b) ANA shall call a Shareholders Meeting to be held as soon as reasonably
practicable after the date of this Agreement for the purpose of voting upon the
Merger. In connection with the Shareholders Meeting, (i) ANA shall mail the
Proxy Statement to its shareholders, (ii) each Party shall furnish to the other
Party all information concerning it that the other Party may reasonably request
in connection with such Proxy Statement, (iii) the Board of Directors of ANA
shall recommend to its shareholders the approval of this Agreement and the
Merger Agreement, subject to its fiduciary duties under applicable law, and
(iv) ANA shall otherwise use its best efforts to obtain such shareholders
approval, subject to its fiduciary duties under applicable law.
(c) This Section 7.1 shall not prohibit accurate disclosure by a Party in
any SEC Document (including the Proxy Statement and the Registration Statement)
and other disclosure to the extent required by the Securities Laws or other
applicable law if in the opinion of the Board of Directors of such Party (as of
the date of such SEC Document or other disclosure) disclosure is required as to
transactions contemplated hereby or as to any proposal for an Acquisition
Transaction.
7.2 Filings with the State Offices. Promptly following, or contempora-neous
with, the Closing, the Parties will cause the Merger Agreement to be filed with
the Secretary of State of Louisiana, and will cause to be made all such other
filing as are required by the BCL.
7.3 Tax Opinion. The Parties agree to use their reasonable efforts to obtain
a written opinion of Castaing Hussey & Lolan LLC, addressed to the Parties and
reasonably satisfactory to their respective counsel, dated the
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date of the Closing, subject to the customary representations and assumptions,
and substantially to the effect that (a) the Merger will be treated for Federal
income tax purposes as a reorganization within the meaning of Section
368(a)(1)(A) of the Code, and IBKC and ANA will each be a party to the
reorganization within the meaning of Section 368(b) of the Code, (b) no gain or
loss will be recognized by IBKC and ANA as a result of the Merger, (c) a
shareholder of ANA who receives both IBKC Common Stock and cash consideration
in exchange for all of his or her shares of ANA Common Stock generally will
recognize gain, but not loss, to the extent of the lesser of: (1) the excess,
if any, of (a) the sum of the aggregate fair market value of the IBKC Common
Stock received (including any fractional share of IBKC Common Stock deemed to
be received and exchanged for cash) and the amount of cash received over (b)
the shareholder's aggregate tax basis in the shares of ANA Common Stock
exchanged in the Merger; and (2) the amount of cash received, (d) the aggregate
tax basis of the IBKC Common Stock received by shareholders of ANA who exchange
all of their ANA Common Stock in the Merger will equal such shareholder's
aggregate tax basis in the shares of ANA Common Stock being exchanged, reduced
by any amount allocable to a fractional share interest of IBKC Common Stock for
which cash is received and by the amount of any cash consideration received,
and increased by the amount of taxable gain, if any recognized by such
shareholder in the Merger, (e) the holding period of the shares of IBKC Common
Stock received in the Merger will include the period during which the shares of
ANA Common Stock surrendered in exchange therefor were held, provided such
shares of ANA Common Stock were held as capital assets at the Effective Time.
7.4 Press Releases. Prior to the Effective Time, the Parties shall give when
practicable prior notice to each other as to the form and substance of any
press release or other public disclosure materially related to this Agreement
or any other transaction contemplated hereby; provided, however, that nothing
in this Section 7.4 shall be deemed to prohibit a Party from making any
disclosure which its counsel deems necessary in order to satisfy such Party's
disclosure obligations imposed by law.
7.5 Applications. The Parties shall prepare and file applications with the
Federal Reserve, the State Regulatory Commissioners and any other appropriate
governmental authorities seeking the approvals necessary to consummate the
transactions contemplated by this Agreement. The Parties shall provide copies
of all such filings to each other within two business days after such filings
are made and shall promptly inform each other of all substantive regulatory
contacts concerning the transactions contemplated by this Agreement.
SECTION VIII.
CONDITIONS PRECEDENT TO OBLIGATIONS TO CONSUMMATE
The obligation of each Party to consummate the Merger is subject to the
satisfaction of each of the following conditions, unless waived by such Party
pursuant to Section 10.5 of this Agreement:
8.1 Representations and Warranties. The representations and warranties of
the other Party set forth or referred to in this Agreement shall be true and
correct as of the date of this Agreement and as of the time of the Closing with
the same effect as though all such representations and warranties had been made
on and as of the time of the Closing, in each case subject to the standard set
forth in Section 5.23 hereof, except (i) for any such representations and
warranties made as of a specified date, which shall be true and correct as of
such date or (ii) as expressly contemplated or permitted by this Agreement.
8.2 Performance of Agreements and Covenants. Each and all of the agreements
and covenants of the other Party to be performed and complied with pursuant to
this Agreement and the other agreements contemplated hereby prior to the time
of the Closing shall have been duly performed and complied with by it in all
material respects.
8.3 Certificates. Each of the Parties shall have delivered to the other
Party a certificate, dated as of the time of the Closing and signed on its
behalf by its chief executive officer and its chief financial officer, to the
effect that the conditions of its obligations set forth in Section 8.1 and
Section 8.2 of this Agreement with respect to it have been satisfied, all in
such reasonable detail as the other Party shall request.
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8.4 Shareholder Approval. The shareholders of ANA shall have approved this
Agreement, the Merger Agreement, the Merger and the consummation of the
transactions contemplated hereby and thereby, as and to the extent required by
law and by the provisions of any governing instruments, and ANA shall have
furnished to IBKC certified copies of resolutions duly adopted by its
shareholders evidencing the same.
8.5 Consents and Approvals. All material approvals and authorizations of,
filings and registrations with, and notifications to, all Regulatory
Authorities required for consummation of the Merger and for the prevention of
any termination of any material right, privilege, license or agreement of any
Party or any of its Subsidiaries shall have been obtained or made and shall be
in full force and effect, and all waiting periods required by law shall have
expired. Any approval obtained from any Regulatory Authority which is necessary
to consummate the transactions contemplated hereby shall not contain any
non-standard term or condition which in the reasonable judgment of the Board of
Directors of either of the Parties so materially and adversely affects the
economic or business assumptions of the transactions contemplated by this
Agreement as to render inadvisable the consummation of the Merger. To the
extent that any lease, license, loan or financing agreement or other contract
or agreement to which any Party or any of its Subsidiaries, as the case may be,
is a party requires the consent of or waiver from the other party thereto as a
result of the transactions contemplated by this Agreement, such consent or
waiver shall have been obtained, unless the failure to obtain such consent or
waiver would not, following the Merger, have a Material Adverse Effect on such
Party.
8.6 Legal Proceedings. No Party shall be subject to any order, decree or
injunction of a court or agency of competent jurisdiction which enjoins or
prohibits consummation of any of the transactions contemplated by this
Agreement.
8.7 Accountants' Letters. Each Party shall have received "comfort" letters
from the other Party's independent public accountants dated, respectively,
within three days prior to the mailing of the Proxy Statement and the Closing
Date, in form and substance as are usual and customary for comfort letters of
this type.
8.8 Tax Matters. Each Party shall have received the tax opinion addressed to
it referred to in Section 7.3 of this Agreement.
8.9 Registration Statement. The Registration Statement shall be effective
under the 1933 Act and no stop orders suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such purpose
shall be pending before or threatened by the SEC.
8.10 Simultaneous Transactions. The Closing shall have occurred and the
other Party shall have executed all documents and taken all such other action
as is necessary to effectuate the Merger other than filing the Merger Agreement
as referred to in Section 7.2, and each Party shall have irrevocably authorized
its agents to make such filing in its behalf.
8.11 Legal Opinions. Each Party shall have received an opinion,
substantially in the form of Exhibit VI-A or VI-B annexed hereto, as
applicable, from counsel for the other Party.
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SECTION IX.
TERMINATION
9.1 Termination. Notwithstanding any other provision of this Agreement or
the Merger Agreement and notwithstanding the approval of this Agreement and the
Merger Agreement by the shareholders of ANA, this Agreement and the Merger
Agreement may be terminated and the Merger abandoned at any time prior to the
Closing:
(a) By mutual consent of the Boards of Directors of IBKC and ANA; or
(b) By the Board of Directors of a Party in the event of a material
breach by the other Party of any representation, warranty, covenant or
agreement of such other Party contained herein which would result in the
failure to satisfy the closing condition set forth in Section 8.1 or 8.2 of
this Agreement, which breach cannot be or has not been cured within 30 days
after the giving of a written notice to the breaching Party of such material
breach; or
(c) By the Board of Directors of either Party in the event that the
Merger shall not have been consummated by March 31, 2003, except that if on
such date any required regulatory or shareholder approval has not been
obtained, a Party who is not otherwise in breach of this Agreement may
extend such date one or more times but not beyond June 30, 2003; or
(d) By the Board of Directors of either Party in the event (i) any
approval of any governmental or other Regulatory Authority required for
consummation of the Merger and the other transactions contemplated hereby
shall have been denied by final non-appealable action of such authority or
if any such action taken by such authority is not appealed within the time
limit for appeal or (ii) if the shareholders of ANA fail to have approved
this Agreement, the Merger Agreement and the Merger, as applicable, and the
consummation of the transactions contemplated hereby and thereby, as
applicable, at the Shareholders Meeting to the extent required by law and by
the provisions of any governing instruments; or
(e) By the Board of Directors of a Party in the event that any of the
conditions precedent to the obligations of such Party to consummate the
Merger cannot be satisfied or fulfilled on or before March 31, 2003 (other
than required regulatory or shareholder approval and other than by reason of
a breach by the Party seeking to terminate); or
(f) By the Board of Directors of a Party in the event of the acquisition,
by any person or group of persons, of beneficial ownership of 25% or more of
the outstanding shares of Common Stock of the other Party (the terms
"person", "group" and "beneficial ownership" having the meanings assigned
thereto in Section 13(d) of the 1934 Act and the regulations promulgated
thereunder); or
(g) By the Board of Directors of IBKC if the Board of Directors of ANA
shall or shall have resolved to withdraw, modify or change its
recommendation to ANA's shareholders of this Agreement, the Merger Agreement
or the Merger, or recommend any Acquisition Transaction other than the
Merger; or
(h) By the Board of Directors of a Party if the other Party has
experienced or is reasonably likely to experience a Material Adverse Effect,
which is not remedied or cured within 30 days after notice of intention to
terminate is given by the Party invoking this Section 9.1(h), which notice
shall specify the nature of the matter or matters constituting such Material
Adverse Effect and which are the basis of such intention; provided that the
right to terminate that is specified in such notice of intention shall
itself terminate unless notice of termination is given by such Party within
15 days following the end of such remedial or curative period; or
(i) By the Board of Directors of ANA if ANA Option Shares shall have been
issued pursuant to any exercise of the Stock Option Agreement and, at the
time scheduled for Closing, all or any portion of such ANA Option Shares
would not be cancelled in accordance with Section 2.3(b) by virtue of the
Merger.
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(j) By the Board of Directors of IBKC if the amount designated as
deposits, on the balance sheet of ANA as of the date of the public
announcement of this Agreement decreases by 15% or more between such
announcement date and the day prior to the Closing date determined in
accordance with Section 3.1(a), determined on the basis of either of the
amount designated as deposits on the day prior to the Closing date or the
average amount designated as deposits for the 60 day period ending the day
prior to the Closing date.
(k) By the Board of Directors of ANA, if the Market Value is less than
$30.00, subject, however to the following three sentences. If ANA elects to
exercise its termination right pursuant to the immediately preceding
sentence, it shall give written notice to IBKC (provided that such notice of
election to terminate may be withdrawn within three days after it is given).
During the two-day period commencing with its receipt of such notice, IBKC
shall have the option of increasing the Cash Consideration to be received by
the holders of ANA Common Stock hereunder by an amount equal to $30.00 minus
the Market Value. If IBKC makes an election contemplated by the preceding
sentence within such two-day period, it shall give prompt written notice to
ANA of such election and the revised amount of the Cash Consideration,
whereupon no termination shall have occurred pursuant to this Section 9.1(k)
and this Agreement shall remain in effect in accordance with its terms
(except as the Cash Consideration shall have been so modified), and any
references in this Agreement to Cash Consideration shall thereafter be
deemed to refer to the Cash Consideration as adjusted pursuant to this
Section 9.1(k).
(l) At any time prior to the Shareholders Meeting, by ANA in order to
approve, accept or recommend an Acquisition Transaction which has been
received and considered by ANA and the ANA Board and determined to be a
Superior Proposal in compliance with Section 6.9 hereof, provided, however,
that this Agreement may be terminated by ANA pursuant to this Section 9.1(l)
only after the third Business Day following IBKC's receipt of written notice
from ANA advising IBKC that ANA is prepared to approve, accept or recommend
such an Acquisition Transaction, and only if, during such three-Business Day
period, IBKC does not, in its sole discretion, make an offer to ANA that the
ANA Board determines in good faith, after consultation with its financial
and legal advisors, is at least as favorable as such Superior Proposal.
9.2 Effect of Termination. In the event of the termination and abandonment
of this Agreement and the Merger Agreement pursuant to Section 9.1 of this
Agreement, this Agreement and the Merger Agreement shall become void and have
no effect and the Parties will be relieved of all obligations and liabilities
under this Agreement and the Merger Agreement, except that (i) the provisions
of the last sentence of Section 6.4 and Section X of this Agreement shall
survive any such termination and abandonment, (ii) the Stock Option Agreement
shall be governed by its own terms as to termination, (iii) a termination
pursuant to Section 9.1(b) or 9.1(e) or 9.1(g) of this Agreement shall not
relieve a breaching Party from liability for any breach giving rise to such
termination and (iv) the Parties shall remain obligated under, and liable for
any breach of, any of the provisions of this Agreement that survive its
termination.
9.3 Survival of Representations, Warranties and Covenants. The respective
representations, warranties, obligations, covenants and agreements of the
Parties shall not survive the Effective Time except for (i) this Section 9.3,
Section 2.3 and Section IV of this Agreement and (ii) the Merger Agreement,
provided that no such representations, warranties or covenants shall be deemed
to be terminated or extinguished so as to deprive any Party (or any director,
officer or controlling person thereof) of any defense in law or equity which
otherwise would be available against the claims of any person, including,
without limitation, any shareholder or former shareholder of any Party, the
aforesaid representations, warranties and covenants being material inducements
to consummation by the Parties of the transactions contemplated hereby.
B-26
SECTION X.
MISCELLANEOUS
10.1 Expenses.
(a) Except as provided in Section 2.3(a) and Section 10.1(b) of this
Agreement, each of the Parties shall bear and pay all costs and expenses,
incurred by it or on its behalf in connection with the transactions
contemplated hereunder, including fees and expenses of its own financial or
other consultants, investment bankers, accountants and counsel.
(b) Notwithstanding the foregoing, a Party (the "Expense Paying Party")
shall pay all of the costs and expenses, up to a maximum of $250,000 incurred
by the other Party (the "Reimbursed Party") (without duplication pursuant to
this Agreement or any other agreement or instrument) in connection with this
Agreement and the transactions contemplated hereunder, including fees and
expenses of such Reimbursed Party's financial or other consultants, investment
bankers, accountants and counsel, if:
(i) (a) this Agreement is terminated pursuant to Section 9.1(b) by reason
of a material breach by the Expense Paying Party, (b) the Reimbursed Party
was the Party who terminated it, and (c) the Expense Paying Party is at the
time of the termination not also entitled to terminate this Agreement
pursuant to Section 9.1(b) by reason of a material breach of the Reimbursed
Party; or
(ii) a Purchase Event occurs with respect to the Stock Option Agreement
if ANA is the Expense Paying Party and the Merger has not been, or
thereafter is not, consummated for any reason other than a termination
pursuant to Section 9.1(b) because of a material breach by the Reimbursed
Party.
Nothing contained in this Section 10.1(b) shall constitute or shall be
deemed to constitute liquidated damages for the breach by a Party of the terms
of this Agreement or otherwise limit the rights of the nonbreaching Party.
(c) Final settlement with respect to payment of fees and expenses by the
Parties pursuant to Section 10.1 of this Agreement shall be made within 30 days
of the termination of this Agreement and the Merger Agreement. If more than one
Party is responsible as an Expense Paying Party, then the costs and expenses
which the Expense Paying Parties are obligated to pay shall be equally shared
between them, regardless of whether their relative degree of fault is or is not
equal.
10.2 Brokers and Finders. Except as Previously Disclosed, each of the
Parties represents and warrants that neither it nor any of its officers,
directors, employees, affiliates or Subsidiaries has employed any broker or
finder or incurred any liability for any financial advisory fees, investment
bankers' fees, brokerage fees, commissions or finders' fees in connection with
this Agreement or the transactions contemplated hereby. In the event of a claim
by any broker or finder based upon its representing or being retained by or
allegedly representing or being retained by any Party, such Party agrees to
indemnify and hold the other Party harmless of and from such claim.
10.3 Entire Agreement. Except as otherwise expressly provided herein, this
Agreement, including the exhibits hereto, the Merger Agreement, the Stock
Option Agreement and the Confidentiality Agreement contain the entire agreement
among the Parties with respect to the transactions contemplated hereunder and
thereunder, and such agreements supersede all prior arrangements or
understanding with respect thereto, written or oral. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the Parties
and their respective successors. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party, other than the Parties or their
respective successors, any rights, remedies, obligations or liabilities under
or by reason of this Agreement except for (i) the rights of shareholders of ANA
to receive the Merger Consideration following the Effective Time and (ii) the
provisions of Section 4.4, which shall inure to the benefit of and be
enforceable by the Persons referenced therein.
B-27
10.4 Amendments. To the extent permitted by law, this Agreement or the
Merger Agreement may be amended by a subsequent writing signed by each of the
Parties upon the approval of the Boards of Directors of such Parties; provided,
however, that the provisions of this Agreement and the Merger Agreement
relating to the manner or basis in which shares of ANA Common Stock will be
exchanged for IBKC Common Stock shall not be amended after the Shareholders
Meeting without the requisite approval of the holders of the issued and
outstanding shares of ANA Common Stock entitled to vote thereon. The Parties
may, without approval of their respective Boards of Directors, make such
technical changes to this Agreement or the Merger Agreement, not inconsistent
with the purposes hereof and thereof, as may be required to effect or
facilitate any governmental approval or acceptance of the Merger or of this
Agreement or the Merger Agreement or to effect or facilitate any filing or
recording required for the consummation of any of the transactions contemplated
hereby or thereby.
10.5 Waivers. Prior to or at the Effective Time, each Party, acting through
its Board of Directors or chief executive officer or other authorized officer,
shall, as to such Party's rights hereunder, have the right (i) to waive any
default in the performance of any term of this Agreement by the other Party,
(ii) to waive or extend the time for the compliance or fulfillment by the other
Party of any and all of its obligations under this Agreement, and (iii) to
waive any or all of the conditions precedent to the obligations of such Party
under this Agreement.
10.6 No Assignment. Neither of the Parties may assign any of its rights or
obligations under this Agreement or the Merger Agreement to any other Person
without the express written consent of the other Party and any such purported
assignment without such requisite consent shall be null and void.
10.7 Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered by hand, by
facsimile transmission or by registered or certified mail, postage pre-paid, to
the Persons at the addresses set forth below (or at such other address as may
be provided hereunder), and shall be deemed to have been delivered as of the
date so delivered:
If to IBKC:
IBERIABANK Corporation
2110 Pinhook Road
Lafayette, LA 70508-3230
Attention: Daryl G. Byrd
With a copy to:
Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P.
201 St. Charles Avenue, 46th Floor
New Orleans, LA 70170-4600
Attention: Anthony J. Correro, III
If to ANA:
Acadiana Bancshares, Inc.
200 W. Congress Street
Lafayette, LA 70502
Attention: Gerald Reaux
With a copy to:
Elias, Matz, Tiernan & Herrick, L.L.P.
735 15/th/ Street, N.W., 12/th/ Floor
Washington, D.C. 20005
Attention: Raymond A. Tiernan
B-28
10.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana without regard to the
conflict of laws principles thereof.
10.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute one and the same instrument.
10.10 Captions. The captions contained in this Agreement are for reference
purposes only and are not part of this Agreement.
In Witness Whereof, each of the Parties has caused this Agreement to be
executed on its behalf and attested by officers thereunto duly authorized all
as of the day and year first above written.
IBERIABANK CORPORATION
By: /s/ DARYL G. BYRD
-----------------------------
Daryl G. Byrd
ACADIANA BANCSHARES, INC.
By: /s/ GERALD G. REAUX, JR.
-----------------------------
Gerald G. Reaux, Jr.
IBAC has joined as a party to this Agreement on this 22nd day of September,
2002.
IBERIABANK ACQUISITION CORPORATION
By: /s/ DARYL G. BYRD
-----------------------------
Daryl G. Byrd
B-29
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Section 83 of the Louisiana Business Corporation Law permits a corporation
to indemnify its directors and officers against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any action, suit or proceeding to which he
is or was a party or is threatened to be made a party (including any action by
or in the right of the corporation) if such action arises out of the fact that
he is or was a director, officer, employee or agent of the corporation and he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The indemnification provisions of Section 83 are not exclusive,
but no corporation may indemnify any person for willful or intentional
misconduct. A corporation has the power to obtain and maintain insurance, or to
create a form of self-insurance on behalf of any person who is or was acting
for the corporation, regardless of whether the corporation has the legal
authority to indemnify the insured person against such liability.
Article 8 of IBERIA's articles of incorporation provides for mandatory
indemnification for current and former directors and officers to the full
extent permitted by Louisiana law.
IBERIA maintains an insurance policy covering the liability of its directors
and officers for actions taken in their official capacity.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
The following Exhibits are filed as part of this Registration Statement:
Exhibit No. Description
----------- -----------
2.1 Agreement and Plan of Merger (incorporated by reference to Exhibit 2.1 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2002)
2.2 Stock Option Agreement (incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2002)
3.1 Articles of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 2001)
3.2 Bylaws of the Company, as amended (incorporated by reference to Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001)
5 Opinion of Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P.
8 Opinion of Castaing Hussey & Lolan, LLC on certain tax matters
23.1 Consent of Castaing, Hussey & Lolan, LLC.
23.2 Consent of Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P. (included in Exhibit 5)
23.3 Consent of Triangle Capital Partners, LLC
23.4 Consent of Independent Auditors
23.5 Consent of Independent Auditors
24 Powers of Attorney of directors of IBERIA (See Signature Page)
99.1 Form of Proxy of Acadiana
99.2 Acadiana's 2001 Annual Report to Stockholders
II-1
Exhibit No. Description
----------- -----------
99.3 Acadiana's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2002
(incorporated by reference)
99.4 Form of Proxy for the Employee Stock Ownership Plan of Acadiana
99.5 Form of Letter to the Employee Stock Ownership Plan Participants
99.6 Form of Proxy for the Recognition Plan of Acadiana
99.7 Form of Letter to the Persons Granted Restricted Stock Under the Recognition Plan of Acadiana
99.8 Form of Proxy for the 401(K) Plan of Acadiana
99.9 Form of Letter to the 401(K) Plan Participants
Item 22. Undertakings
The undersigned Registrant hereby undertakes as follows:
(1) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of Form
S-4 within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding
to the request.
(2) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the Registration Statement when
it became effective.
(3) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(5) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(6) That, for the purpose of determining any liability under the
Securities Act of 1933 each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") that is incorporated by reference in the
Registration Statement shall be deemed
II-2
to be a new registration statement related to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(7) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the Registrant undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items
of the applicable form.
(8) That every prospectus (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act of 1933 and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part
of an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes of determining any
liability under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(9) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
in response to Item 20 of this Registration Statement, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment No. 1 to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of New Iberia,
State of Louisiana on the 2nd day of January, 2003.
IBERIABANK CORPORATION
By: /s/ DARYL G. BYRD
-------------------------
Daryl G. Byrd
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ DARYL G. BYRD Chief Executive Officer and January 2, 2003
----------------------- Director
Daryl G. Byrd
* Chief Financial Officer and January 2, 2003
----------------------- Principal Accounting Officer
Marilyn W. Burch
* Chairman of the Board and January 2, 2003
----------------------- Director
William H. Fenstermaker
* Director January 2, 2003
-----------------------
Elaine D. Abell
* Director January 2, 2003
-----------------------
Harry V. Barton, Jr.
* Director January 2, 2003
-----------------------
Ernest P. Breaux, Jr.
* Director January 2, 2003
-----------------------
Cecil C. Broussard
* Director January 2, 2003
-----------------------
John N. Casbon
S-1
Signature Title Date
--------- ----- ----
* Director January 2, 2003
---------------------------
Larrey G. Mouton
* Director January 2, 2003
---------------------------
Jefferson G. Parker
* Director January 2, 2003
---------------------------
E. Stewart Shea III
*By: /s/ Daryl G. Byrd
---------------------------
Attorney-in-Fact
S-2
The following Exhibits are filed as part of this Registration Statement:
Exhibit No. Description
----------- -----------
2.1 Agreement and Plan of Merger (incorporated by reference to Exhibit 2.1 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2002)
2.2 Stock Option Agreement (incorporated by reference to Exhibit 10.1 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2002)
3.1 Articles of Incorporation, as amended (incorporated by reference to Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 2001)
3.2 Bylaws of the Company, as amended (incorporated by reference to Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001)
5 Opinion of Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P. (previously filed)
8 Opinion of Castaing Hussey & Lolan, LLC on certain tax matters
23.1 Consent of Castaing, Hussey & Lolan, LLC.
23.2 Consent of Correro Fishman Haygood Phelps Walmsley & Casteix, L.L.P.(included in Exhibit 5)
23.3 Consent of Triangle Capital Partners, LLC
23.4 Consent of Independent Auditors
23.5 Consent of Independent Auditors
24 Powers of Attorney of directors of IBERIA (See Signature Page)
99.1 Form of Proxy of Acadiana
99.2 Acadiana's 2001 Annual Report to Stockholders (previously filed)
99.3 Acadiana's Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2002
(incorporated by reference)
99.4 Form of Proxy for the Employee Stock Ownership Plan of Acadiana
99.5 Form of Letter to the Employee Stock Ownership Plan Participants
99.6 Form of Proxy for the Recognition Plan of Acadiana
99.7 Form of Letter to the Persons Granted Restricted Stock Under the Recognition Plan of Acadiana
99.8 Form of Proxy for the 401(K) Plan of Acadiana
99.9 Form of Letter to the 401(K) Plan Participants
E-1