EXHIBIT 10.1
PURCHASE AGREEMENT
($10,000,000 Trust Capital Securities)
THIS PURCHASE AGREEMENT, dated as of June 17, 2003, is entered into
among IBERIABANK Corporation, a Louisiana corporation (the "Company"),
IBERIABANK Statutory Trust II, a Connecticut statutory trust (the "Trust," and
together with the Company, the "Sellers"), and Trapeza CDO III, LLC (including
any assignee, the "Purchaser").
WITNESSETH:
WHEREAS, Sellers propose to issue and sell 10,000 Floating Rate Capital
Securities of the Trust, having a stated liquidation amount of $1,000 per
security, bearing interest at a variable rate, reset quarterly, equal to LIBOR
(as defined in the Indenture (as defined below)) plus 3.15% (the "Capital
Securities");
WHEREAS, the Capital Securities will be guaranteed by the Company (the
"Guarantee") pursuant to the Guarantee Agreement (the "Guarantee Agreement"),
dated as of the Closing Date (defined below), and executed and delivered by the
Company and U.S. Bank National Association, a national banking association, as
trustee (in such capacity, the "Guarantee Trustee"), for the benefit of the
holders from time to time of the Capital Securities;
WHEREAS, the entire proceeds from the sale of the Capital Securities
will be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities"), and will be used by
the Trust to purchase $10,310,000 in principal amount of the Floating Rate
Junior Subordinated Deferrable Interest Debentures of the Company (the "Junior
Subordinated Debentures");
WHEREAS, the Capital Securities and the Common Securities of the Trust
will be issued pursuant to the Amended and Restated Declaration of Trust (the
"Declaration of Trust"), dated as of the Closing Date, among the Company, as
sponsor, U.S. Bank National Association, a national banking association, as
property trustee (in such capacity, the "Property Trustee"), the Administrators
of the Trust named therein (in such capacities, the "Administrators ") and the
holders from time to time of undivided beneficial interests in the assets of the
Trust; and
WHEREAS, the Junior Subordinated Debentures will be issued pursuant to
a Junior Subordinated Indenture, dated as of the Closing Date (the "Indenture"),
between the Company and U.S. Bank National Association, a national banking
association, as indenture trustee (in such capacity, the "Indenture Trustee").
NOW, THEREFORE, in consideration of the mutual agreements and subject
to the terms and conditions herein set forth, the parties hereto agree as
follows:
1. Definitions. The Capital Securities, the Common Securities and
the Junior Subordinated Debentures are collectively referred to herein as the
"Securities." This Purchase Agreement, the Indenture, the Declaration of Trust,
the Guarantee Agreement and the Securities are collectively referred to herein
as the "Operative Documents." All other capitalized terms used
but not defined in this Purchase Agreement shall have the meanings ascribed
thereto in the Declaration of Trust.
2. Purchase and Sale of the Capital Securities.
(a) The Sellers agree to sell to the Purchaser, and the
Purchaser agrees to purchase from the Sellers the Capital Securities for an
amount (the "Purchase Price") equal to $10,000,000, less a discount of 0% (the
"Discount"). The Purchaser shall be responsible for the following expenses: (i)
rating agency costs and expenses; (ii) the fees of the Property Trustee, the
Guarantee Trustee and Indenture Trustee for a period of five (5) years following
the Closing Date; and (iii) any fee payable to the Company's introducing agents;
provided, that each such introducing agent has an agreement with the Purchaser,
but excluding the fees and expenses set forth in Section 7 hereof. The Sellers
shall use the Purchase Price, together with the proceeds from the sale of the
Common Securities, to purchase the Junior Subordinated Debentures.
(b) Delivery or transfer of, and payment for, the Capital
Securities shall be made at 10:00 A.M. Chicago time (11:00 A.M. New York time),
on June ___, 2003, or such later date (not later than July ____, 2003) as the
parties may designate (such date and time of delivery and payment for the
Capital Securities being herein called the "Closing Date"). The Capital
Securities shall be transferred and delivered to the Purchaser against the
payment of the Purchase Price to the Sellers made by wire transfer in
immediately available funds on the Closing Date to a U.S. account designated in
writing by the Company at least two business days prior to the Closing Date.
(c) Delivery of the Capital Securities shall be made at
such location, and in such names and denominations, as the Purchaser shall
designate at least two business days in advance of the Closing Date. The Company
and the Trust agree to have the Capital Securities available for inspection and
checking by the Purchaser in New York, New York, not later than 1:00 P.M.,
Chicago time (2:00 P.M. New York time), on the business day prior to the Closing
Date. The closing for the purchase and sale of the Capital Securities shall
occur at the offices of Powell, Goldstein, Frazer & Murphy LLP, 191 Peachtree
Street, N.E., Sixteenth Floor, Atlanta, Georgia 30303, or such other place as
the parties hereto shall agree.
3. Conditions. The obligations of the parties under this Purchase
Agreement are subject to the following conditions:
(a) The representations and warranties contained herein
shall be accurate as of the date of delivery of the Capital Securities.
(b) [Reserved.]
(c) The Company shall have furnished to the Purchaser the
opinion of Cozen O'Connor, counsel to the Company and the Trust, dated the
Closing Date, addressed to the Purchaser (and such other affiliates of the
Purchaser as the Purchaser shall designate), in substantially the form set out
in Annex A hereto.
(d) The Purchaser shall have been furnished the opinion
of Powell, Goldstein, Frazer & Murphy LLP, special tax counsel for the
Purchaser, dated the Closing Date, addressed
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to the Purchaser (and such other affiliates of the Purchaser as the Purchaser
shall designate), in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of
Shipman & Goodwin LLP, special Connecticut counsel for the Trust, dated the
Closing Date, addressed to the Purchaser (and such other affiliates of the
Purchaser as the Purchaser shall designate) and the Company, in substantially
the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of
Shipman & Goodwinn LLP, special counsel for the Guarantee Trustee, the Property
Trustee and the Indenture Trustee, dated the Closing Date, addressed to the
Purchaser (and such other affiliates of the Purchaser as the Purchaser shall
designate), in substantially the form set out in Annex D hereto.
(g) [Reserved.]
(h) The Company shall have furnished to the Purchaser a
certificate of the Company, signed by the Chief Executive Officer, President or
an Executive Vice President and by the Chief Financial Officer, Treasurer or
Assistant Treasurer of the Company, and the Trust shall have furnished to the
Purchaser a certificate of the Trust, signed by an Administrator of the Trust,
in each case dated the Closing Date, and, in the case of the Company, as to (i)
and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this
Purchase Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and the Company and the Trust have
complied with all the agreements and satisfied all the conditions on either of
their part to be performed or satisfied at or prior to the Closing Date; and
(ii) since the date of the Interim Financial
Statements (as defined below), there has been no material adverse change in the
condition (financial or other), earnings, business or assets of the Company and
its subsidiaries, whether or not arising from transactions occurring in the
ordinary course of business.
(i) Subsequent to the execution of this Purchase
Agreement, there shall not have been any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
earnings, business or assets of the Company and its subsidiaries, whether or not
occurring in the ordinary course of business, the effect of which is, in the
Purchaser's judgment, so material and adverse as to make it impractical or
inadvisable to proceed with the purchase of the Capital Securities.
(j) Prior to the Closing Date, the Company and the Trust
shall have furnished to the Purchaser and its counsel such further information,
certificates and documents as the Purchaser or its counsel may reasonably
request.
If any of the conditions specified in this Section 3 shall not have
been fulfilled when and as provided in this Purchase Agreement, or if any of the
opinions, certificates and documents mentioned above or elsewhere in this
Purchase Agreement shall not be reasonably satisfactory in form and substance to
the Purchaser or its counsel, this Purchase Agreement and all the Purchaser's
obligations hereunder may be canceled at, or at any time prior to, the Closing
Date
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by the Purchaser. Notice of such cancellation shall be given to the Company and
the Trust in writing or by telephone or facsimile confirmed in writing.
Each certificate signed by any Administrator of the Trust or any
officer of the Company and delivered to the Purchaser or the Purchaser's counsel
in connection with the Operative Documents and the transactions contemplated
hereby and thereby shall be deemed to be a representation and warranty of the
Trust and/or the Company, as the case may be, and not by such Administrator or
officer in any individual capacity.
4. Representations and Warranties of the Company and the Trust.
The Company and the Trust jointly and severally represent and warrant to, and
agree with the Purchaser, as follows:
(a) Neither the Company nor the Trust, nor any of their
"Affiliates" (as defined in Rule 501(b) of Regulation D under the Securities Act
(as defined below) ("Regulation D")), nor any person acting on its or their
behalf, has, directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would require the
registration of any of the Securities under the Securities Act of 1933, as
amended (the "Securities Act").
(b) Neither the Company nor the Trust, nor any of their
Affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of any of the Securities.
(c) The Securities (i) are not and have not been listed
on a national securities exchange registered under section 6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or quoted on a U.S.
automated inter-dealer quotation system and (ii) are not of an open-end
investment company, unit investment trust or face-amount certificate company
that is, or is required to be, registered under section 8 of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the
Securities otherwise satisfy the eligibility requirements of Rule 144A(d)(3)
promulgated pursuant to the Securities Act ("Rule 144A(d)(3)").
(d) Neither the Company nor the Trust, nor any of their
Affiliates, nor any person acting on its or their behalf, has engaged, or will
engage, in any "directed selling efforts" within the meaning of Regulation S
under the Securities Act with respect to the Securities.
(e) Neither the Company nor the Trust is, and,
immediately following consummation of the transactions contemplated hereby and
the application of the net proceeds therefrom, will not be, an "investment
company" or an entity "controlled" by an "investment company," in each case
within the meaning of section 3(a) of the Investment Company Act.
(f) Neither the Company nor the Trust has paid or agreed
to pay to any person any compensation for soliciting another to purchase any of
the Securities, except for any fee payable to the Company's introducing agents,
provided, that each such introducing agent has an agreement with the Purchaser.
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(g) The Trust has been duly created and is validly
existing in good standing as a statutory trust under the Connecticut Statutory
Trust, Connecticut General Statutes, Title 34, Chapter 615, Section 500, et seq.
(the "Statutory Trust Act") with all requisite power and authority to own
property and to conduct the business it transacts and proposes to transact and
to enter into and perform its obligations under the Operative Documents to which
it is a party. The Trust is duly qualified to transact business as a foreign
entity and is in good standing in each jurisdiction in which such qualification
is necessary, except where the failure to so qualify or be in good standing
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business or assets of the Trust, whether or not occurring
in the ordinary course of business. The Trust is not a party to or otherwise
bound by any agreement other than the Operative Documents. The Trust is and will
be, under current law, classified for federal income tax purposes as a grantor
trust and not as an association or publicly traded partnership taxable as a
corporation.
(h) The Declaration of Trust has been duly authorized by
the Company and, on the Closing Date specified in Section 2(b), will have been
duly executed and delivered by the Company and the Administrators of the Trust,
and, assuming due authorization, execution and delivery by the Property Trustee
and the Delaware Trustee, will be a legal, valid and binding obligation of the
Company and the Administrators, enforceable against them in accordance with its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity. Each of the
Administrators of the Trust is an employee of the Company or one of its
subsidiary banks and has been duly authorized by the Company to execute and
deliver the Declaration of Trust.
(i) Each of the Guarantee Agreement and the Indenture has
been duly authorized by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company, and, assuming due authorization,
execution and delivery by the Guarantee Trustee, in the case of the Guarantee
Agreement, and by the Indenture Trustee, in the case of the Indenture, will be a
legal, valid and binding obligation of the Company enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity.
(j) The Capital Securities and the Common Securities have
been duly authorized by the Trust and, when issued and delivered against payment
therefor on the Closing Date in accordance with this Purchase Agreement, in the
case of the Capital Securities, and in accordance with the Common Securities
Subscription Agreement between the Company and the Trust, dated as of the
Closing Date, in the case of the Common Securities, will be validly issued,
fully paid and non-assessable and will represent undivided beneficial interests
in the assets of the Trust entitled to the benefits of the Declaration of Trust,
enforceable against the Trust in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity. The issuance of the Securities is
not subject to any preemptive or other similar rights. On the Closing Date, all
of the issued and outstanding Common Securities will be directly owned by the
Company free and clear of any pledge, security interest, claim, lien or other
encumbrance (each, a "Lien").
(k) The Junior Subordinated Debentures have been duly
authorized by the Company and, on the Closing Date, will have been duly executed
and delivered to the Indenture
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Trustee for authentication in accordance with the Indenture and, when
authenticated in the manner provided for in the Indenture and delivered to the
Trust against payment therefor in accordance with the Junior Subordinated
Debentures Subscription Agreement between the Company and the Trust, dated as of
the Closing Date, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
(l) This Purchase Agreement has been duly authorized,
executed and delivered by the Company and the Trust.
(m) Neither the issue and sale of the Common Securities,
the Capital Securities or the Junior Subordinated Debentures, nor the purchase
of the Junior Subordinated Debentures by the Trust, nor the execution and
delivery of and compliance with the Operative Documents by the Company or the
Trust, nor the consummation of the transactions contemplated herein or therein,
(i) will conflict with or constitute a violation or breach of the Declaration of
Trust or the charter or bylaws of the Company or any subsidiary of the Company
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, governmental authority, agency or instrumentality or
court, domestic or foreign, having jurisdiction over the Trust or the Company or
any of its subsidiaries or their respective properties or assets (collectively,
"Governmental Entities"), (ii) will conflict with or constitute a violation or
breach of, or a default or Repayment Event (as defined below) under, or result
in the creation or imposition of any Lien upon any property or assets of the
Trust, the Company or any of the Company's subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which (A) the Trust, the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or (B) to which any of the
property or assets of any of them is subject, or any judgment, order or decree
of any court, governmental authority or arbitrator, except, in the case of this
clause (ii), for such conflicts, breaches, violations, defaults, Repayment
Events (as defined below) or Liens which (X) would not, singly or in the
aggregate, adversely affect the consummation of the transactions contemplated by
the Operative Documents and (Y) would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), earnings,
business, liabilities and assets (taken as a whole) or business prospects of the
Company and its subsidiaries taken as a whole, whether or not occurring in the
ordinary course of business (a "Material Adverse Effect") or (iii) require the
consent, approval, authorization or order of any court or Governmental Entity.
As used herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Trust or the
Company or any of its subsidiaries prior to its scheduled maturity.
(n) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Louisiana, with all
requisite corporate power and authority to own, lease and operate its properties
and conduct the business it transacts and proposes to transact, and is duly
qualified to transact business and is in good standing as a foreign corporation
in each jurisdiction where the nature of its activities requires such
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qualification, except where the failure of the Company to be so qualified would
not, singly or in the aggregate, have a Material Adverse Effect.
(o) The Company has no subsidiaries that are material to
its business, financial condition or earnings other than those subsidiaries
listed in Schedule 1 attached hereto (the "Significant Subsidiaries"). Each
Significant Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which it is
chartered or organized, with all requisite corporate power and authority to own,
lease and operate its properties and conduct the business it transacts and
proposes to transact. Each Significant Subsidiary is duly qualified to transact
business and is in good standing as a foreign corporation in each jurisdiction
where the nature of its activities requires such qualification, except where the
failure to be so qualified would not, singly or in the aggregate, have a
Material Adverse Effect.
(p) Each of the Trust, the Company and each of the
Company's subsidiaries hold all necessary approvals, authorizations, orders,
licenses, certificates and permits (collectively, "Government Licenses") of and
from Governmental Entities necessary to conduct their respective businesses as
now being conducted, and neither the Trust, the Company nor any of the Company's
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Government License, except where the failure to be
so licensed or approved or the receipt of an unfavorable decision, ruling or
finding, would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except
where the invalidity or the failure of such Governmental Licenses to be in full
force and effect, would not, singly or in the aggregate, have a Material Adverse
Effect; and the Company and its subsidiaries are in compliance with all
applicable laws, rules, regulations, judgments, orders, decrees and consents,
except where the failure to be in compliance would not, singly or in the
aggregate, have a Material Adverse Effect.
(q) All of the issued and outstanding shares of capital
stock of the Company and each of its subsidiaries are validly issued, fully paid
and non-assessable; all of the issued and outstanding capital stock of each
subsidiary of the Company is owned by the Company, directly or through
subsidiaries, free and clear of any Lien, claim or equitable right; and none of
the issued and outstanding capital stock of the Company or any subsidiary was
issued in violation of any preemptive or similar rights arising by operation of
law, under the charter or by-laws of such entity or under any agreement to which
the Company or any of its subsidiaries is a party.
(r) Neither the Company nor any of its subsidiaries is
(i) in violation of its respective charter or by-laws or similar organizational
documents or (ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which the
Company or any such subsidiary is a party or by which it or any of them may be
bound or to which any of the property or assets of any of them is subject,
except, in the case of clause (ii), where such violation or default would not,
singly or in the aggregate, have a Material Adverse Effect.
(s) There is no action, suit or proceeding before or by
any Governmental Entity, arbitrator or court, domestic or foreign, now pending
or, to the knowledge of the Company or the Trust after due inquiry, threatened
against or affecting the Trust or the Company
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or any of the Company's subsidiaries, except for such actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, adversely affect the consummation of the transactions contemplated by
the Operative Documents or have a Material Adverse Effect; and the aggregate of
all pending legal or governmental proceedings to which the Trust or the Company
or any of its subsidiaries is a party or of which any of their respective
properties or assets is subject, including ordinary routine litigation
incidental to the business, are not expected to result in a Material Adverse
Effect.
(t) The accountants of the Company who certified the
Financial Statements (as defined below) are independent public accountants of
the Company and its subsidiaries within the meaning of the Securities Act, and
the rules and regulations of the Securities and Exchange Commission (the
"Commission") thereunder.
(u) The audited consolidated financial statements
(including the notes thereto) and schedules of the Company and its consolidated
subsidiaries for the fiscal year ended December 31, 2002 (the "Financial
Statements") and the interim unaudited consolidated financial statements of the
Company and its consolidated subsidiaries for the quarter ended March 31, 2003
(the "Interim Financial Statements") provided to the Purchaser are the most
recent available audited and unaudited consolidated financial statements of the
Company and its consolidated subsidiaries, respectively, and fairly present in
all material respects, in accordance with U.S. generally accepted accounting
principles, the financial position of the Company and its consolidated
subsidiaries, and the results of operations and changes in financial condition
as of the dates and for the periods therein specified, subject, in the case of
Interim Financial Statements, to year-end adjustments (which are expected to
consist solely of normal recurring adjustments). Such consolidated financial
statements and schedules have been prepared in accordance with U.S. generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein).
(v) None of the Trust, the Company nor any of its
subsidiaries has any material liability, whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become due,
including any liability for taxes (and there is no past or present fact,
situation, circumstance, condition or other basis for any present or future
action, suit, proceeding, hearing, charge, complaint, claim or demand against
the Company or its subsidiaries that could give rise to any such liability),
except for (i) liabilities set forth in the Financial Statements or the Interim
Financial Statements and (ii) normal fluctuations in the amount of the
liabilities referred to in clause (i) above occurring in the ordinary course of
business of the Trust, the Company and all of its subsidiaries since the date of
the most recent balance sheet included in such Financial Statements.
(w) The Company's report on FRY-9C dated March 31, 2003
(the "FRY-9C"), provided to the Purchaser is the most recently available such
report, and the information therein fairly presents in all material respects the
financial position of the Company and its subsidiaries.
(x) Since the respective dates of the Financial
Statements, Interim Financial Statements and the FRY-9C, there has not been (A)
any material adverse change or development with respect to the condition
(financial or otherwise), earnings, business, assets or business
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prospects of the Company and its subsidiaries, taken as a whole, whether or not
occurring in the ordinary course of business or (B) any dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock other than regular quarterly dividends on the Company's common stock.
(y) The Company is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the "Bank
Holding Company Act"), and the regulations of the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), and the deposit accounts of the
Company's subsidiary banks are insured by the Federal Deposit Insurance
Corporation ("FDIC") to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceeding for the termination of such insurance
are pending or, to the knowledge of the Company or the Trust after due inquiry,
threatened.
(z) The documents of the Company filed with the
Commission in accordance with the Exchange Act, from and including the
commencement of the fiscal year covered by the Company's most recent Annual
Report on Form 10-K, at the time they were or hereafter are filed by the Company
with the Commission (collectively, the "1934 Act Reports"), complied and will
comply in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, at the date of this Purchase Agreement and on the Closing
Date, do not and will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and other than such instruments, agreements, contracts and
other documents as are filed as exhibits to the Company's Annual Report on Form
10-K, Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, there are
no instruments, agreements, contracts or documents of a character described in
Item 601 of Regulation S-K promulgated by the Commission to which the Company or
any of its subsidiaries is a party.
(aa) None of the Trust, the Company nor any of its
subsidiaries is subject or is party to, or has received any notice from any
Regulatory Agency (as defined below) that any of them will become subject or
party to any investigation with respect to, any cease-and-desist order,
agreement, consent agreement, memorandum of understanding or other regulatory
enforcement action, proceeding or order with or by, or is a party to any
commitment letter or similar undertaking to, or is subject to any directive by,
or has been a recipient of any supervisory letter from, or has adopted any board
resolutions at the request of, any Regulatory Agency that, in any such case,
currently restricts in any material respect the conduct of their business or
that in any material manner relates to their capital adequacy, their credit
policies, their management or their business (each, a "Regulatory Action"), nor
has the Trust, the Company or any of its subsidiaries been advised by any
Regulatory Agency that it is considering issuing or requesting any such
Regulatory Action; and there is no unresolved violation, criticism or exception
by any Regulatory Agency with respect to any report or statement relating to any
examinations of the Trust, the Company or any of its subsidiaries, except where
such unresolved violation, criticism or exception would not, singly or in the
aggregate, have a Material Adverse Effect. As used herein, the term "Regulatory
Agency" means any federal or state agency charged with the supervision or
regulation of depositary institutions or holding companies of depositary
institutions, or engaged in the insurance of depositary institution deposits, or
any court, administrative agency or commission or other governmental agency,
authority or instrumentality
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having supervisory or regulatory authority with respect to the Trust, the
Company or any of its subsidiaries.
(bb) No labor dispute with the employees of the Trust, the
Company or any of its subsidiaries exists or, to the knowledge of the executive
officers of the Trust or the Company, is imminent, except those which would not,
singly or in the aggregate, have a Material Adverse Effect.
(cc) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any Governmental
Entity, other than those that have been made or obtained, is necessary or
required for the performance by the Trust or the Company of their respective
obligations under the Operative Documents, as applicable, or the consummation by
the Trust and the Company of the transactions contemplated by the Operative
Documents.
(dd) Each of the Trust, the Company and each subsidiary of
the Company has good and marketable title to all of its respective real and
personal properties, in each case free and clear of all Liens and defects,
except for those that would not, singly or in the aggregate, have a Material
Adverse Effect; and all of the leases and subleases under which the Trust, the
Company or any subsidiary of the Company holds properties are in full force and
effect, except where the failure of such leases and subleases to be in full
force and effect, would not, singly or in the aggregate, have a Material Adverse
Effect, and none of the Trust, the Company or any subsidiary of the Company has
any notice of any claim of any sort that has been asserted by anyone adverse to
the rights of the Trust, the Company or any subsidiary of the Company under any
such leases or subleases, or affecting or questioning the rights of such entity
to the continued possession of the leased or subleased premises under any such
lease or sublease, except for such claims that would not, singly or in the
aggregate, have a Material Adverse Effect.
(ee) The Company has no present intention to exercise its
option to defer payments of interest on the Junior Subordinated Debentures as
provided in the Indenture. The Company believes that the likelihood that it
would exercise its rights to defer payments of interest on the Junior
Subordinated Debentures as provided in the Indenture at any time during which
the Junior Subordinated Debentures are outstanding is remote because of the
restrictions that would be imposed on the Company's ability to declare or pay
dividends or distributions on, or to redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock and on
the Company's ability to make any payments of principal, interest or premium on,
or repay, repurchase or redeem, any of its debt securities that rank pari passu
in all respects with or junior in interest to the Junior Subordinated
Debentures.
(ff) The information provided by the Company and the Trust
pursuant to this Purchase Agreement does not, as of the date hereof, and will
not, as of the Closing Date, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
5. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to, and agrees with, the Company and the Trust as
follows:
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(a) The Purchaser is aware that (i) the Securities have
not been and will not be registered under the Securities Act and may not be
offered or sold within the United States or to "U.S. persons" (as defined in
Regulation S under the Securities Act) except in accordance with Rule 903 of
Regulation S under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act; and (ii) the Company and the
Trust are under no obligation to register the Securities on the Purchaser's
behalf.
(b) The Purchaser is an "accredited investor," as such
term is defined in Rule 501(a) of Regulation D under the Securities Act, has
such knowledge and experience in financial and business matters to enable
Purchaser to utilize the information made available to it in connection with the
offering of the Capital Securities to evaluate the merits and risks of the
prospective investment, and to make an informed decision with respect thereto.
(c) Neither the Purchaser, nor any of the Purchaser's
affiliates, nor any person acting on the Purchaser's or the Purchaser's
Affiliate's behalf has engaged, or will engage, in any form of "general
solicitation or general advertising" (within the meaning of Regulation D under
the Securities Act) in connection with any offer or sale of the Capital
Securities.
(d) The Purchaser is purchasing the Capital Securities
for its own account, for investment, and not with a view to, or for offer or
sale in connection with, any distribution thereof on violation of the Securities
Act or applicable state securities laws.
(e) The Purchaser and its representatives have been
furnished with any materials relating to the Company, the Trust and the offering
of the Capital Securities which they have requested and have been afforded the
opportunity to ask questions and receive answers concerning the terms and
conditions of the offering and the Capital Securities.
6. Agreements of the Company and the Trust. The Company and the
Trust jointly and severally agree with the Purchaser as follows:
(a) The Company and the Trust will arrange for the
qualification of the Capital Securities for sale under the laws of such
jurisdictions as the Purchaser may designate and will maintain such
qualifications in effect so long as required for the sale of the Capital
Securities. The Company or the Trust, as the case may be, will promptly advise
the Purchaser of the receipt by the Company or the Trust, as the case may be, of
any notification with respect to the suspension of the qualification of the
Capital Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose.
(b) Neither the Company nor the Trust will, nor will
either of them permit any of its Affiliates to, nor will either of them permit
any person acting on its or their behalf (other than the Purchaser) to, resell
any Capital Securities that have been acquired by any of them.
(c) Neither the Company nor the Trust will, nor will
either of them permit any of their Affiliates or any person acting on their
behalf to, engage in any "directed selling efforts" within the meaning of
Regulation S under the Securities Act with respect to the Securities.
(d) Neither the Company nor the Trust will, nor will
either of them permit any of their Affiliates or any person acting on their
behalf to, directly or indirectly, make offers or
11
sales of any security, or solicit offers to buy any security, under
circumstances that would require the registration of any of the Securities under
the Securities Act.
(e) Neither the Company nor the Trust will, nor will
either of them permit any of its Affiliates or any person acting on their behalf
to, engage in any form of "general solicitation or general advertising" (within
the meaning of Regulation D) in connection with any offer or sale of the any of
the Securities.
(f) So long as any of the Securities are outstanding, (i)
the Securities shall not be listed on a national securities exchange registered
under section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system and (ii) neither the Company nor the Trust shall be an open-end
investment company, unit investment trust or face-amount certificate company
that is, or is required to be, registered under section 8 of the Investment
Company Act, and the Securities shall otherwise satisfy the eligibility
requirements of Rule 144A(d)(3).
(g) Each of the Company and the Trust shall furnish to
(i) the holders, and to subsequent holders of the Securities, (ii) Trapeza
Manager, Inc. (at 507 Carew Tower, 441 Vine Street, Cincinnati, Ohio 45202, or
such other address as designated by Trapeza Manager, Inc.) and (iii) any
beneficial owner of the Securities reasonably identified to the Company and the
Trust (which identification may be made either by such beneficial owner or by
Trapeza Manager, Inc.) a duly completed and executed certificate in the form
attached hereto as Annex F, including the financial statements referenced in
such Annex, which certificate and financial statements shall be so furnished by
the Company and the Trust not later than forty five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of the Company and
not later than ninety (90) days after the end of each fiscal year of the
Company.
(h) Each of the Company and the Trust will, during any
period in which it is not subject to and in compliance with section 13 or 15(d)
of the Exchange Act, or it is not exempt from such reporting requirements
pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act,
provide to each holder of the Securities and to each prospective purchaser (as
designated by such holder) of the Securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Securities Act. This covenant is intended to be for the
benefit of the Purchaser, the holders of the Securities, and the prospective
purchasers designated by the Purchaser and such holders, from time to time, of
the Securities.
(i) Neither the Company nor the Trust will, until one
hundred eighty (180) days following the Closing Date, without the Purchaser's
prior written consent, offer, sell, contract to sell, grant any option to
purchase or otherwise dispose of, directly or indirectly, (i) any Capital
Securities or other securities of the Trust other than as contemplated by this
Purchase Agreement, (ii) any other securities convertible into, or exercisable
or exchangeable for, any Capital Securities or other securities of the Trust, or
(iii) any securities that could be integrated with the offering of the Capital
Securities, nor shall either the Company or the Trust enter into any agreement,
or announce an intention to do, any of the foregoing.
7. Payment of Expenses. The Company, as sponsor of the Trust,
agrees to pay all costs and expenses incident to the performance of the
obligations of the Company and the Trust
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under this Purchase Agreement, whether or not the transactions contemplated
herein are consummated or this Purchase Agreement is terminated, including all
costs and expenses incident to (i) the authorization, issuance, sale and
delivery of the Capital Securities and any taxes payable in connection
therewith; (ii) the fees and expenses of qualifying the Capital Securities under
the securities laws of the several jurisdictions as provided in Section 6(a);
(iii) the fees and expenses of the counsel, the accountants and any other
experts or advisors retained by the Company or the Trust; and (iv) the fees and
all reasonable expenses of the Guarantee Trustee, the Property Trustee, the
Indenture Trustee and any other trustee or paying agent appointed under the
Operative Documents, including the fees and disbursements of counsel for such
trustees, for any period after the fifth (5th) anniversary of the Closing Date.
If the sale of the Capital Securities provided for in this
Purchase Agreement is not consummated because any condition set forth in Section
3 to be satisfied by either the Company or the Trust is not satisfied, because
this Purchase Agreement is terminated pursuant to Section 10 or because of any
failure, refusal or inability on the part of the Company or the Trust to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder other than by a reason of a default by the Purchaser, the
Company will reimburse the Purchaser upon demand for all reasonable
out-of-pocket expenses (including the fees and expenses of each of the
Purchaser's counsel specified in subparagraph (v) of the immediately preceding
paragraph) that shall have been incurred by the Purchaser in connection with the
proposed purchase and sale of the Capital Securities. The Company shall not in
any event be liable to the Purchaser for the loss of anticipated profits from
the transactions contemplated by this Purchase Agreement.
8. Indemnification. (a) The Company and the Trust agree jointly
and severally to indemnify and hold harmless the Purchaser, the Purchaser's
affiliates, Trapeza Funding III, LLC, Trapeza Partners III, L.P. and Credit
Suisse First Boston LLC, their respective directors, officers, employees and
agents and each person who "controls" any of them within the meaning of either
the Securities Act or the Exchange Act (collectively, the "Indemnified Parties")
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
written information or documents furnished or made available to the Purchaser by
or on behalf of the Company, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) the breach or alleged breach of any
representation, warranty or agreement of either Seller contained herein, and
agree to reimburse each such Indemnified Party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Company or the Trust
may otherwise have.
(b) The Company agrees to indemnify the Trust against all
loss, liability, claim, damage and expense whatsoever due from the Trust under
paragraph (a) above.
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(c) Promptly after receipt by an Indemnified Party under
this Section 8 of notice of the commencement of any action, such Indemnified
Party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, promptly notify the indemnifying party in writing of
the commencement thereof, but the failure so to notify the indemnifying party
(i) will not relieve the indemnifying party from liability under paragraph (a)
above unless and to the extent that such failure results in the forfeiture by
the indemnifying party of material rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any Indemnified
Party other than the indemnification obligation provided in paragraph (a) above.
The Purchaser shall be entitled to appoint counsel to represent the Indemnified
Party in any action for which indemnification is sought. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the Indemnified Party) also be counsel to the Indemnified Party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all Indemnified Parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. An indemnifying party will not,
without the prior written consent of the Indemnified Parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the Indemnified Parties
are actual or potential parties to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of each Indemnified Party from all liability arising out of such claim, action,
suit or proceeding.
9. Contribution. (a) In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Section 8 hereof is for any reason held to be unenforceable for the benefit of
an Indemnified Party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such Indemnified Party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Sellers, on the one
hand, and the Purchaser, on the other hand, from the offering of the Securities
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above, but also the relative fault of the
Sellers, on the one hand, and the Purchaser, on the other hand, in connection
with the statements, omissions or breaches, which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
(b) The relative benefits received by the Sellers, on the
one hand, and the Purchaser, on the other hand, in connection with the offering
of the Securities shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of the Securities (before deducting
expenses) received by the Sellers and the Discount received by the Purchaser
bear to the aggregate of such net proceeds and commissions.
(c) The Sellers and the Purchaser agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to
14
above in this Section 9. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an Indemnified Party and referred to above in
this Section 9 shall be deemed to include any legal or other expenses reasonably
incurred by such Indemnified Party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement, omission or alleged omission or breach
or alleged breach.
(d) Notwithstanding any provision of this Section 9 to
the contrary, the Purchaser shall not be required to contribute any amount in
excess of the Discount.
(e) No person guilty of fraudulent misrepresentation
(within the meaning of section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) For purposes of this Section 9, the Purchaser, each
person, if any, who controls the Purchaser within the meaning of section 15 of
the Securities Act or section 20 of the Exchange Act and the respective
partners, directors, officers, employees and agents of the Purchaser or any such
controlling person shall have the same rights to contribution as the Purchaser,
while each officer and director of the Company, each trustee of the Trust and
each person, if any, who controls the Company within the meaning of section 15
of the Securities Act or section 20 of the Exchange Act shall have the same
rights to contribution as the Sellers.
10. Termination. This Purchase Agreement shall be subject to
termination in the absolute discretion of the Purchaser, by notice given to the
Company and the Trust prior to delivery of and payment for the Capital
Securities, if prior to such time (i) a downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is used by
the Commission in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, or such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Company's debt
securities or preferred stock, (ii) the Trust shall be unable to sell and
deliver to the Purchaser at least $10,000,000 stated liquidation value of
Capital Securities (provided that the inability of the Trust to sell and deliver
the Capital Securities is not due to the fault of the Purchaser), (iii) the
Company or any of its subsidiaries that is an insured depository institution
shall cease to be "adequately-capitalized" within the meaning of 12 U.S.C.
Section1831 and applicable regulations adopted thereunder, or any formal
administrative or judicial action is taken by any appropriate federal banking
agency against the Company or any such insured subsidiary for unsafe and unsound
banking practices, or violations of law, (iv) a suspension or material
limitation in trading in securities generally shall have occurred on the New
York Stock Exchange, (v) a suspension or material limitation in trading in any
of the Company's securities shall have occurred on the exchange or quotation
system upon which the Company' securities are traded, if any, (vi) a general
moratorium on commercial banking activities shall have been declared either by
federal or Louisiana authorities or (vii) there shall have occurred any outbreak
or escalation of hostilities, or declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the Purchaser's judgment, impracticable or
inadvisable to proceed with the offering or delivery of the Capital Securities.
15
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and the Trust or their respective officers or trustees and of the
Purchaser set forth in or made pursuant to this Purchase Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of the Purchaser, the Company or the Trust or any of their respective officers,
directors, trustees or controlling persons, and will survive delivery of and
payment for the Capital Securities. The provisions of Sections 7, 8 and 9 shall
survive the termination or cancellation of this Purchase Agreement.
12. Amendments. This Purchase Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement by each of the parties hereto.
13. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Purchaser, will be mailed,
delivered by hand or courier or sent by facsimile and confirmed to the Purchaser
c/o Trapeza Funding, LLC, 441 Vine Street, Suite 507, Cincinnati, Ohio 45202,
Attention: Steven N. Stein, Facsimile: (513) 241-1026; with a copy to Powell,
Goldstein, Frazer & Murphy LLP, 191 Peachtree Street, N.E., Sixteenth Floor,
Atlanta, Georgia 30303, Attention: James J. McAlpin, Jr., Facsimile: (404)
572-6999; and if sent to the Company or the Trust, will be mailed, delivered by
hand or courier or sent by facsimile and confirmed to it at IBERIABANK
Corporation, 200 West Congress Street, Lafayette, Louisiana 70501, Attention:
John R. Davis, Facsimile: (919) 676-7463; with a copy to Cozen O'Connor, 1667 K
Street, NW, Washington, D.C. 20006; Attention: Edward B. Crosland, Jr., Esq.,
Facsimile: (202) 912-4830.
14. Successors and Assigns. This Purchase Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing expressed or mentioned in this
Purchase Agreement is intended or shall be construed to give any person other
than the parties hereto and the affiliates, directors, officers, employees,
agents and controlling persons referred to in Section 8 hereof and their
successors, assigns, heirs and legal representatives, any right or obligation
hereunder. None of the rights or obligations of the Company or the Trust under
this Purchase Agreement may be assigned, whether by operation of law or
otherwise, without the Purchaser's prior written consent. The rights and
obligations of the Purchaser under this Purchase Agreement may be assigned by
the Purchaser without the Company's or the Trust's consent; provided that the
assignee assumes the obligations of the Purchaser under this Purchase Agreement.
15. Applicable Law. THIS PURCHASE AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW).
16. Submission to Jurisdiction. ANY LEGAL ACTION OR PROCEEDING BY
OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS PURCHASE
AGREEMENT MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK,
IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK (IN
16
EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF
THIS PURCHASE AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR
IN CONNECTION WITH THIS PURCHASE AGREEMENT.
17. Counterparts and Facsimile. This Purchase Agreement may be
executed by any one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument. This Purchase Agreement may be
executed by any one or more of the parties hereto by facsimile.
17
IN WITNESS WHEREOF, this Purchase Agreement has been entered into as of
the date first written above.
IBERIABANK CORPORATION
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
IBERIABANK STATUTORY TRUST II
By: IBERIABANK Corporation, as Sponsor
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
TRAPEZA CDO III, LLC
By:
-------------------------------------
Name:
------------------------------
Title:
-----------------------------
18