As
filed with the Securities and Exchange Commission on February 20,
2009
Reg.
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MidSouth
Bancorp, Inc.
(Exact
name of registrant as specified in its charter)
Louisiana
(State
or other jurisdiction of incorporation or organization)
72-1020809
(I.R.S.
Employer Identification Number)
102
Versailles Boulevard
Lafayette,
Louisiana 70501
(337)
237-8343
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
C.R.
Cloutier
President
and Chief Executive Officer
MidSouth
Bancorp, Inc.
P.O.
Box 3745
Lafayette,
Louisiana 70502
(337)
237-8343
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
With
a Copy to:
Anthony
J. Correro, III
Adams
and Reese LLP
701
Poydras Street, Suite 4500
New
Orleans, Louisiana 70139
(504)
585-0179
Approximate date of commencement of
proposed sale to the public: From time to time after this Registration
Statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box: ¨
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: þ
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please 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(c) 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 registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. ¨
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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þ
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Non-accelerated
filer
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¨
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Smaller reporting company
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¨
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CALCULATION
OF REGISTRATION FEE
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Title
of each class of securities to be registered
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Amount
of shares to
be
registered
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Proposed
maximum
offering
price per
unit
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Proposed
maximum
aggregate
offering
price
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Amount
of
registration
fee
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||||
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Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, no par value 1
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20,000
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$1,000 2
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$20,000,000
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$9,286
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||||
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Depositary
Shares3
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–
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–
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–
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–
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||||
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Common Stock, par value $0.10 4
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208,768
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$14.37 5
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$2,999,996
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118
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||||
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Warrant to Purchase Common Stock, par value $0.10
6
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–
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–
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–
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–
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||||
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TOTAL:
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$22,999,996
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$9,404
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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 files a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a),
may determine.
1 The U.S.
Treasury requests that we deposit the shares of the Series A Preferred Stock
with a depositary pursuant to a depositary arrangement, depositary shares
evidencing fractional shares of the Series A Preferred Stock may be sold
pursuant to this Registration Statement in lieu of whole shares of the Series A
Preferred Stock.
2
Represents the liquidation preference amount per share of the Fixed Rate
Cumulative Perpetual Preferred Stock, Series A (“Series A Preferred Stock”),
which we sold in a non-public offering to the United States Department of the
Treasury (the “U.S. Treasury”) under its Troubled Asset Relief Program Capital
Purchase Program
3 The U.S.
Treasury requests that we deposit the shares of the Series A Preferred Stock
with a depositary pursuant to a depositary arrangement, depositary shares
evidencing fractional shares of the Series A Preferred Stock may be sold
pursuant to this Registration Statement in lieu of whole shares of the Series A
Preferred Stock.
4 The
shares of common stock being registered are purchasable upon exercise of the
warrant being registered, which we issued to the U.S. Treasury in a non-public
offering concurrent with the sale of the Series A Preferred Stock to the U.S.
Treasury as described in footnote (1). In addition to the number of shares of
common stock stated in the table above, there is registered, pursuant to Rule
416, such number of additional shares of common stock, of a currently
undeterminable amount, as may from time to time become issuable by reason of
stock splits, stock dividends and certain other anti-dilution provisions set
forth in the warrant.
5
Estimated in accordance with Rule 457(i), calculated on the basis of $14.37 per
share exercise price.
The information in this
prospectus is not complete and may be changed. The selling securityholders may
not sell these securities or accept an offer to buy these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any jurisdiction where such offer
or sale is not permitted.
PROSPECTUS
SUBJECT
TO COMPLETION, DATED February 20, 2009
MidSouth
Bancorp, Inc.
20,000
Fixed Rate Cumulative Perpetual Preferred Stock, Series A
(or
Depositary Shares Evidencing Fractional Interests in Such Shares)
and
208,768
Shares of Common Stock and a Warrant to Purchase Such Shares
This
prospectus relates to the potential resale from time to time by selling
securityholders of some or all of the shares of our Fixed Rate Cumulative
Perpetual Preferred Stock, Series A (the “Series A Preferred Stock”) or, if such
shares are deposited with a depositary as described in this prospectus,
depositary shares evidencing fractional interests in such shares, a warrant to
purchase 208,768 shares of our common stock, par value $0.10 per share, and any
shares of common stock issuable upon the exercise of the warrant. The Series A
Preferred Stock and the warrant were originally issued by us pursuant to Letter
Agreement dated January 9, 2009, and the related Securities Purchase Agreement
between us and the United States Department of the Treasury (the “U.S.
Treasury”) which imposed certain terms and conditions on us, including
restrictions on executive compensation. The Series A Preferred Stock and the
warrant were issued in a transaction exempt from the registration requirements
of the Securities Act of 1933, as amended (the “Securities Act”).
The
selling securityholders who may sell or otherwise dispose of the securities
offered by this prospectus include the U.S. Treasury and any other holders of
the securities covered by this prospectus to whom the U.S. Treasury has
transferred its registration rights in accordance with the terms of the Letter
Agreement between us and the U.S. Treasury. The selling securityholders may
offer the securities from time to time directly or through underwriters,
broker-dealers or agents in one or more public or private transactions and at
fixed prices, prevailing market prices, at prices related to the prevailing
market prices, or at negotiated prices. If these securities are sold through
underwriters, broker-dealers or agents, the selling securityholders will be
responsible for underwriting discounts or commissions or agents’ commissions. We
will not receive any proceeds from the sale of securities by the selling
securityholders.
Our
common stock is listed on the New York Stock Exchange Alternext U.S. (“NYSEA”)
and trades under the ticker symbol “MSL”. On February 19, 2009, the closing sale
price of our common stock on the NYSEA was $8.95. You are urged to obtain
current market quotations of the common stock. Neither the Series A
Preferred Stock nor the warrant is listed on any national securities exchange,
and, unless requested by the U.S. Treasury, we do not intend to seek such a
listing for the Series A Preferred Stock or warrant.
The
securities offered by this prospectus are not savings accounts, deposits or
other obligations of any bank and are not insured or guaranteed by the Federal
Deposit Insurance Corporation or any other government agency.
Investing
in our securities involves risks. See the “Risk Factors”.
Neither
the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The date
of this prospectus is February 20, 2009.
TABLE
OF CONTENTS
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement we filed with the Securities and
Exchange Commission, referred to as the SEC, using a “shelf” registration
process. Under this shelf registration process, the selling securityholders may,
from time to time, offer and sell, in one or more offerings, the securities
described in this prospectus. In addition, this prospectus covers the issuance
by us of common stock upon the exercise of the warrant by the holders other than
the initial selling securityholder.
We may
provide a prospectus supplement containing specific information about the terms
of a particular offering by the selling securityholders. The prospectus
supplement may add, update or change information in this prospectus. If the
information in this prospectus is inconsistent with a prospectus supplement, you
should rely on the information in the prospectus supplement. You should read
both this prospectus and, if applicable, any prospectus supplement. You should
rely only on the information contained or incorporated by reference in this
prospectus. We have not, and any underwriters have not, authorized anyone to
provide you with information different from that contained in this prospectus.
If anyone provides you with different or inconsistent information, you should
not rely on it.
We are
not offering to sell shares of common stock or seeking offers to buy shares of
common stock in any jurisdiction where offers and sales are not permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or any sale of
the common stock offered hereby.
All
references in this prospectus to “MidSouth”, “we”, “us”, “our”, or similar
references mean MidSouth Bancorp, Inc. and its subsidiary, MidSouth Bank, N.A.,
unless otherwise expressly stated or the context otherwise
requires.
Certain
statements included in this prospectus or in the documents incorporated by
reference in this prospectus, other than statements of historical fact, are
forward-looking statements (as such term is defined in the Securities Exchange
Act of 1934, as amended, referred to as the Exchange Act, and the regulations
thereunder), which are intended to be covered by the safe harbors created
thereby. Forward-looking statements include, but are not limited
to:
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•
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statements
contained in “Risk Factors” in our most recent Annual Report on Form 10-K
and our most recent Quarterly Report on Form
10-Q;
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•
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statements
contained in “Business” in our most recent Annual Report on Form
10-K;
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•
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statements
contained in “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and notes to MidSouth’s financial statements in
our most recent Annual Report on Form 10-K and Quarterly Report on Form
l0-Q concerning the allowance for loan losses, liquidity, capital adequacy
requirements, unrealized losses and impact of accounting pronouncements;
and
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•
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statements
as to trends or MidSouth’s or management’s beliefs, expectations and
opinions.
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The words
“anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “will,”
“would,” “could,” “should,” “guidance,” “potential,” “continue,” “project,”
“forecast,” “confident,” and similar expressions are typically used to identify
forward-looking statements. These statements are based on assumptions and
assessments made by management in light of their experience and their perception
of historical trends, current conditions, expected future developments and other
factors they believe to be appropriate. Any forward-looking statements are not
guarantees of MidSouth’s future performance and are subject to risks and
uncertainties and may be affected by various factors that may cause actual
results, developments and business decisions to differ materially from those in
the forward-looking statements. Some of the factors that may cause actual
results, developments and business decisions to differ materially from those
contemplated by such forward-looking statements include the risk factors
discussed under the heading “Risk Factors” in MidSouth’s Annual Report on Form
10-K for the year ended December 31,
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•
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changes
in general economic and political conditions and by governmental monetary
and fiscal policies;
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•
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changes
in the economic conditions of the geographic areas in which MidSouth
conducts business;
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•
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changes
in interest rates;
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•
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a
downturn in the real estate markets in which MidSouth conducts
business;
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•
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changes
in federal and state regulation;
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•
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MidSouth’s
ability to estimate loan losses;
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•
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competition;
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•
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breaches
in security or interruptions in MidSouth’s information
systems;
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•
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MidSouth’s
ability to timely develop and implement
technology;
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•
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MidSouth’s
ability to retain its management
team;
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•
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MidSouth’s
ability to maintain effective internal controls over financial reporting
and disclosure controls and procedures;
and
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•
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terrorist
attacks and threats or actual war.
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MidSouth
can give no assurance that any of the events anticipated by the forward-looking
statements will occur or, if any of them does, what impact they will have on
MidSouth’s results of operations and financial condition. MidSouth disclaims any
intent or obligation to publicly update or revise any forward-looking
statements, regardless of whether new information becomes available, future
developments occur or otherwise.
MidSouth
is subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and, in accordance therewith, files
reports, proxy statements and other information with the SEC. Such reports,
proxy statements and other information can be inspected and copied at the Public
Reference Room, 100 F Street, N.E., Washington, D.C. 20549. Copies of such
materials may also be obtained from the Public Reference Room of the Commission
at its Washington address, by mail at prescribed rates. The SEC maintains a
website that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the SEC. The
address of the SEC site is http://www.sec.gov.
This
prospectus omits certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration Statement and to the
exhibits relating thereto for further information with respect to MidSouth and
the securities offered hereby. Any statements contained herein concerning any
document are not necessarily complete, and, in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the SEC. Each such statement is qualified in its
entirety by such reference.
No person
has been authorized to give any information or to make any representation not
contained in this prospectus, and if given or made, such information or
representation should not be relied upon as having been authorized. This
prospectus does not constitute an offer to sell, or a solicitation of an offer
to purchase, any of the securities to which this prospectus relates in any
jurisdiction to or from any person to whom it is unlawful to make such an offer
or solicitation in such jurisdiction. Neither delivery of this prospectus nor
any sale of securities to which this prospectus relates shall, under any
circumstance, create any implication that there has been no change in the
affairs or condition of MidSouth since the date hereof or that the information
contained herein is correct as of any time subsequent to the date
hereof.
There are
hereby incorporated by reference into this prospectus the following documents
filed by MidSouth with the SEC:
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1.
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MidSouth’s
Annual Report on Form 10-K for the year ended December 31,
2007;
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2.
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MidSouth’s
Quarterly Reports on Form 10-Q for the quarters ended March 31,
2008, June 30, 2008, and September 30, 2008;
and
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3.
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MidSouth’s
Current Reports on Form 8-K’s filed on January 28, 2008, February 14,
2008, April 25, 2008, April 25, 2008, May 2, 2008, July 29, 2008, August
20, 2008, October 21, 2008, December 5, 2008, January 14, 2009 and January
30, 2009.
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All
reports filed by MidSouth pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act after the date of this prospectus and prior to the termination
of the offering made hereby shall be deemed to be incorporated by reference into
this prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement.
Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus. MidSouth will provide
without charge to each person to whom a copy of this prospectus has been
delivered, on the request of any such person, a copy of any or all of the
documents referred to under this section that have been incorporated in the
prospectus by reference. Requests for such copies should be directed to C.R.
Cloutier, President and Chief Executive Officer, MidSouth Bancorp, Inc., P.O.
Box 3745, Lafayette, Louisiana 70502. Telephone requests may be directed to
Mr. Cloutier at (337) 237-8343.
This
summary highlights information contained elsewhere in, or incorporated by
reference into, this prospectus. As a result, it does not contain all of the
information that may be important to you or that you should consider before
investing in our securities. You should read this entire prospectus and the
documents incorporated by reference into this prospectus.
MidSouth
Bancorp, Inc.
MidSouth
Bancorp, Inc. (the "Company") is a bank holding company headquartered in
Lafayette, Louisiana. Through its wholly owned subsidiary, MidSouth
Bank, N.A., (the "Bank"), we offer complete banking services to commercial and
retail customers in south Louisiana and southeast Texas through its network of
35 locations and more than 170 ATMs. The Bank is community oriented
and focuses primarily on offering commercial and consumer loan and deposit
services to individuals, small, and middle market businesses.
The south
Louisiana region has 27 offices extending along the Interstate 10 corridor in
south Louisiana located in Lafayette (9 offices), Baton Rouge (3 offices), New
Iberia (3 offices), Lake Charles (2 offices), Sulphur, Jeanerette, Jennings,
Thibodaux, Cutoff, Opelousas, Breaux Bridge, Cecilia, Morgan City, and Houma. A
new full-service banking facility opened in late April 2008 in the Baton Rouge
market.
The
southeast region of Texas currently has one (1) loan production office in Conroe
and seven (7) full-service banking facilities, three of which are located in
Beaumont, Texas, and one in each of Conroe, Houston, Vidor, and College Station,
Texas.
We merged
our two wholly owned banking subsidiaries, MidSouth Bank, N.A. (Louisiana) and
MidSouth Bank Texas, N.A. into MidSouth Bank, N.A., at the end of the first
quarter of 2008. MidSouth
Securities
Being Offered
On
January 9, 2009, pursuant to the Troubled Asset Relief Program Capital Purchase
Program of the U.S. Treasury, we sold to the U.S. Treasury 20,000 shares of our
Series A Preferred Stock, liquidation preference amount $1,000 per share, for an
aggregate purchase price of $20,000,000 million. Furthermore, we concurrently
issued to the U.S. Treasury a ten-year warrant to purchase up to 208,768 shares
of our common stock at an exercise price of $14.37 per share. The issuance of
the Series A Preferred Stock and the warrant were completed in a non-public
offering exempt from the registration requirements of the Securities Act of
1933. We were required under the terms of the Letter Agreement, dated January 9,
2009, and the related Securities Purchase Agreement—Standard Terms to register
for resale the shares of the Series A Preferred Stock, the warrant, and the
shares of our common stock underlying the warrant. This registration includes
depositary shares, representing fractional interests in the Series A Preferred
Stock, which may be resold pursuant to this prospectus in lieu of whole shares
of Series A Preferred Stock in the event U.S. Treasury requests that we deposit
the Series A Preferred Stock held by U.S. Treasury with a depositary under a
depositary arrangement entered into in accordance with the Letter Agreement. The
terms of the Series A Preferred Stock, the warrant, and our common stock are
described under “Description of Series A Preferred Stock”, “Description of
Warrant”, and “Description of Common Stock.” The Letter Agreement between us and
the U.S. Treasury was attached as Exhibit 10.1 to our Current Report on Form 8-K
filed on January 14, 2009 and incorporated into this prospectus by
reference.
Investing
in our securities involves a high degree of risk. Please see the risk factors
described under the caption “Risk Factors” in our Annual Report on Form 10-K for
the year ended December 31, 2007, and our Quarterly Report on Form 10-Q for
the quarter ended September 30, 2008, as well as any updated risk factors
described in our Annual Report on Form 10-K or Quarterly Report on Form 10-Q
which we may file with the SEC in the future, all of which are incorporated by
reference in this prospectus and in any accompanying prospectus
supplement.
Before
making an investment decision, you should carefully consider these risks as well
as information we include or incorporate by reference in this prospectus and in
any accompanying prospectus supplement. The risks and uncertainties we have
described are not the only ones facing our company. Additional risks and
uncertainties not presently known to us or that we currently deem immaterial may
also affect our business operations.
If
any of these risks or uncertainties materializes or any of these assumptions
proves incorrect, our results could differ materially from the forward-looking
statements. All forward-looking statements in this prospectus are current only
as of the date on which the statements were made. We do not undertake any
obligation to publicly update any forward-looking statement to reflect events or
circumstances after the date on which any statement is made or to reflect the
occurrence of unanticipated events.
Participants
in the financial services industry are subject to varying degrees of regulation
and government supervision. For a discussion of the material elements
of the extensive regulatory framework applicable to us, as well as specific
information about us and the Bank, please refer to “Item 1. Business” in our
Annual Report on Form 10-K for the fiscal year ended December 31, 2007, and
any subsequent reports that we file with the Commission, which are incorporated
by reference in this prospectus. See “Additional Information” for
information on how to obtain a copy of our annual report and any subsequent
reports. This regulatory framework is intended primarily for the protection of
depositors and the federal deposit insurance fund and not for the protection of
securityholders.
USE OF PROCEEDS
We will
not receive any proceeds from the sale of Series A Preferred Stock or the
warrant by the selling securityholders. If the holder of the warrant does not
elect a cashless exercise, we may receive proceeds from the exercise of some or
all of the warrant. See “Description of Warrant to Purchase Common Stock –
Exercise of Warrant.”
No shares
of our Series A Preferred Stock, or any other class of preferred stock, were
outstanding during the years ended December 31, 2007, 2006, 2005, 2004 and
2003, or during the nine months ended September 30, 2008 and 2007, and we
did not pay preferred stock dividends during these periods. Consequently, the
ratios of earnings to fixed charges and preferred dividends are the same as the
ratios of earnings to fixed charges for the same periods listed above. The
ratios of earnings to fixed charges for the years ended December 31, 2007,
2006, 2005, 2004 and 2003, and the nine months ended September 30, 2008 and
2007 are as follows:
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Nine Months Ended
September 30,
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Years
Ended December 31,
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2008
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2007
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2007
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2006
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2005
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2004
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2003
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Ratio
of earnings to combined fixed charges (1)
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Including
interest on deposits
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1.44
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1.60
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1.56
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1.66
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1.98
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2.83
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3.08
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Excluding
interest on deposits
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5.54
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9.58
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8.32
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21.14
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22.87
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26.55
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32.36
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(1)
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For
purposes of computing the ratio, earnings consist of income from
continuing operations before income taxes and fixed charges. Fixed charges
consist of interest expense on all long- and short-term borrowings,
including / excluding interest on deposits, and one-third of rental
expense, which we believe is representative of the interest
factor.
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SELLING SECURITYHOLDERS
On
January 9, 2009, we issued the Series A Preferred Stock and the warrant to the
U.S. Treasury, which is the initial selling securityholder under this
prospectus, in a transaction exempt from the registration requirements of the
Securities Act. The U.S. Treasury, or its successors, including transferees, may
from time to time offer and sell, pursuant to this prospectus or a supplement to
this prospectus, any or all of the securities they own. The securities to be
offered under this prospectus for the account of the selling securityholders
are:
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•
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20,000
shares of Series A Preferred Stock no par value, representing beneficial
ownership of 100% of the shares of Series A Preferred Stock outstanding on
the date of this prospectus or, in the event the U.S. Treasury requests
that we deposit the shares of Series A Preferred Stock with a depositary
in accordance with the Letter Agreement between us and the U.S. Treasury,
depositary shares evidencing fractional share interests in such shares of
Series A Preferred Stock;
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•
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A
warrant to purchase 208,768 shares of our common stock, representing
beneficial ownership of approximately 3.1% of our common stock as of
February 20, 2009; and
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•
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208,768
shares of our common stock issuable upon full exercise of the warrant,
which shares, if issued, would represent beneficial ownership of
approximately 3.0% of our common stock as of February 20,
2009.
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For
purposes of this prospectus, we have assumed that, after completion of the
offering, none of the securities covered by this prospectus will be held by the
selling securityholders or affiliates thereof.
Beneficial
ownership is determined in accordance with the rules of the SEC and includes
voting or investment power with respect to the securities. As the date hereof,
we are not aware that anyone other than the U.S. Treasury has any voting and
investment power with respect to the securities being registered under this
prospectus.
We do not
know when or in what amounts the selling securityholders may offer the
securities for sale. The selling securityholders might not sell any of the
securities offered by this prospectus. Because the selling securityholders may
offer all or some of the securities pursuant to this offering, and because we
are unaware of any of the securities being subject to any agreement, arrangement
or understanding, we cannot estimate the number of the securities that will be
held by the selling securityholders after completion of the
offering.
Other
than with respect to the acquisition of the securities, the U.S. Treasury has
not had a material relationship with us.
Information
about the selling securityholders may change over time, and changed information
will be set forth in supplements to this prospectus if and when
necessary.
The
selling securityholders and their successors, including their transferees, may
sell the securities directly to purchasers or through underwriters,
broker-dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions from the selling securityholders or the purchasers of
the securities. These discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.
The
securities may be sold in one or more public or private transactions at fixed
prices, prevailing market prices at the time of sale, prices related to the
prevailing market prices at the time of sale, or at negotiated prices. These
sales may be effected in transactions, which may involve crosses or block
transactions:
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•
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On
any national securities exchange on which the Series A Preferred Stock or
the common stock may be listed at the time of sale, including, as of the
date of this prospectus, the NYSE Alternext in the case of the common
stock;
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•
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In
the over-the-counter market;
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•
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In
transactions otherwise than on those exchanges or in the over-the-counter
market; or
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•
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Through
the writing of options, whether the options are listed on an options
exchange or otherwise.
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In
addition, any securities that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
In
connection with the sale of the securities or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers, which
may, in turn, engage in short sales of the common stock issuable upon exercise
of the warrant in the course of hedging the positions they assume. The selling
securityholders also may sell short the common stock issuable upon exercise of
the warrant and deliver common stock to close out short positions, or loan or
pledge the Series A Preferred Stock or the common stock issuable upon exercise
of the warrant to broker-dealers that in turn may sell these
securities.
The
aggregate proceeds to the selling securityholders from the sale of the Series A
Preferred Stock or the warrant securities will be the purchase price of those
securities less discounts and commissions, if any.
In
effecting sales, broker-dealers or agents engaged by the selling securityholders
may arrange for other broker-dealers to participate. Broker-dealers or agents
may receive commissions, discounts or concessions from the selling
securityholders in amounts to be negotiated immediately prior to the
sale.
In
offering the securities covered by this prospectus, the selling securityholders
and any broker-dealers who execute sales for the selling securityholders may be
deemed to be “underwriters” within the meaning of Section 2(a)(11) of the
Securities Act in connection with such sales. Any profits realized by the
selling securityholders and the compensation of any broker-dealer may be deemed
to be underwriting discounts and commissions. Selling securityholders who are
“underwriters” within the meaning of Section 2(a)(11) of the Securities Act
will be subject to the prospectus delivery requirements of the Securities Act
and may be subject to certain statutory and regulatory liabilities, including
liabilities imposed pursuant to Sections 11, 12 and 17 of the Securities Act and
Rule 10b-5 under the Exchange Act.
In order
to comply with the securities laws of certain states, if applicable, the
securities must be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states, the securities
covered by this prospectus may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of securities pursuant to this prospectus and to the activities of the
selling securityholders. In addition, we will make copies of this prospectus
available to the selling securityholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act, which may include
delivery through the facilities of the NYSE Alternext pursuant to Rule 153 under
the Securities Act.
At the
time a particular offer of securities covered by this prospectus is made, if
required, a prospectus supplement will set forth the number and type of
securities being offered and the terms of the offering, including the name of
any underwriter, dealer or agent, the purchase price paid by any underwriter,
any discount, commission and other items constituting compensation, any
discount, commission or concession allowed or reallowed or paid to any dealer,
and the proposed selling price to the public.
Neither
the Series A Preferred Stock nor the warrant is listed on any national
securities exchange. Unless requested by the U.S. Treasury, we do not intend to
list the Series A Preferred Stock or the warrant on any national securities
exchange. No assurance can be given as to the liquidity of the trading market,
if any, for the Series A Preferred Stock.
We have
agreed to indemnify the selling securityholders against certain liabilities,
including certain liabilities under the Securities Act. We have also agreed,
among other things, to bear substantially all expenses (other than underwriting
discounts and selling commissions) in connection with the registration and sale
of the securities covered by this prospectus.
The
following is a brief description of the terms of the Series A Preferred Stock
that may be resold by the selling securityholders. This summary does not purport
to be complete in all respects. This description is subject to, and qualified in
its entirety, by reference to our articles of incorporation, as amended,
including the Certificate of Designations with respect to the Series A Preferred
Stock, copies of which have been filed with the SEC and are also available upon
request from us.
General
Under our
articles of incorporation, as amended, we have authority to issue up to
5,000,000 shares of preferred stock, with no par value per share. Of such number
of shares of preferred stock, 20,000 shares have been designated as Series A
Preferred Stock. All of the shares of Series A Preferred Stock were
issued to the U.S. Treasury in a transaction exempt from the registration
requirements of the Securities Act. The issued and outstanding shares of Series
A Preferred Stock are validly issued, fully paid and nonassessable. No other
shares of preferred stock are issued and outstanding as of the date hereof.
Dividends
Payable on Shares of Series A Preferred Stock
Commencing
January 9, 2009 and until February 14, 2014, holders of shares of Series A
Preferred Stock are entitled to receive if, as and when declared by our board of
directors or any duly authorized committee of the board of directors, but only
out of assets legally available for payment, cumulative cash dividends at a rate
of 5%, or $1,000,000 per annum per share. On and after February 15,
2014, holders of shares of Series A Preferred Stock are entitled to receive
cumulative cash dividends at a rate of 9%, or $1,800,000 per annum per
share with respect to each dividend period.
Dividends
will begin to accumulate and be cumulative from January 9, 2009, shall compound
on each subsequent dividend payment date, and, beginning February 15, 2009,
are payable quarterly in arrears on each
February 15, May 15, August 15 and November 15. If
any dividend payment date is not a business day, then the next business day will
be the applicable dividend payment date, and no additional dividends will accrue
as a result of the applicable postponement of the dividend payment date.
Dividends payable during any dividend period are computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends payable with respect
to the Series A Preferred Stock are payable to holders of record of shares of
Series A Preferred Stock on the date that is 15 calendar days immediately
preceding the applicable dividend payment date or such other record date as the
board of directors or any duly authorized committee of the board determines, so
long as such record date is not more than 60 nor less than 10 days prior to the
applicable dividend payment date.
If we
determine not to pay any dividend or a full dividend with respect to the Series
A Preferred Stock, we are required to provide written notice to the holders of
shares of Series A Preferred Stock prior to the applicable dividend payment
date.
Since we
receive all of our revenue from dividends paid to us by MidSouth Bank, our
ability to pay dividends on our common stock and preferred stock depends on our
receipt of dividends from MidSouth Bank. Dividend payments from MidSouth Bank
are subject to legal and regulatory limitations, generally based on net income
and retained earnings. The ability of MidSouth Bank to pay dividends to us is
also subject to its profitability, financial condition, capital expenditures and
other cash flow requirements. In addition, we are subject to Louisiana state
laws relating to the payment of dividends.
Priority
of Dividends
With
respect to the payment of dividends and the amounts to be paid upon liquidation,
the Series A Preferred Stock will rank:
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1.
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Senior
to our common stock and all other equity securities designated as ranking
junior to the Series A Preferred Stock; and
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2.
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At
least equally with all other equity securities designated as ranking on a
parity with the Series A Preferred Stock, or parity stock, with respect to
the payment of dividends and distribution upon any liquidation,
dissolution or winding-up of
MidSouth.
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So long
as any shares of Series A Preferred Stock remain outstanding, unless all accrued
and unpaid dividends for all prior dividend periods have been paid or are
contemporaneously declared and paid in full, no dividend whatsoever shall be
paid or declared on the common stock or other junior stock, other than a
dividend payable solely in common stock. We and our subsidiaries also may not
purchase, redeem or otherwise acquire for consideration any shares of our common
stock or other junior stock unless we have paid in full all accrued dividends on
the Series A Preferred Stock for all prior dividend periods, other
than:
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1.
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Purchases,
redemptions or other acquisitions of our common stock or other junior
stock in connection with the administration of our employee benefit plans
in the ordinary course of business pursuant to a publicly announced
repurchase plan and consistent with past practice up to the
increase in diluted shares outstanding resulting from the grant, vesting
or exercise of equity-based compensation;
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2.
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Purchases
or other acquisitions by broker-dealer subsidiaries of MidSouth solely for
the purpose of market-making, stabilization or customer facilitation
transactions in junior stock or parity stock in the ordinary course of its
business;
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3.
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Purchases
or other acquisitions by broker-dealer subsidiaries of MidSouth for resale
pursuant to an offering by MidSouth of its stock that is underwritten by
the broker-dealer subsidiary;
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4.
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Any
dividends or distributions of rights or junior stock in connection with
any shareholders’ rights plan or and redemption or repurchase of rights
pursuant to any shareholders’ rights plan;
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5.
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Acquisition
of record ownership of junior stock or parity stock for the beneficial
ownership of any other person who is not MidSouth or a subsidiary of
MidSouth, including as trustee or custodian; and
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6.
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The
exchange or conversion of junior stock for or into other junior stock or
of parity stock for or into other parity stock or junior stock but only to
the extent that such acquisition is required pursuant to binding
contractual agreements entered into before January 9, 2009 or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for common stock.
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If we
repurchase shares of Series A Preferred Stock from a holder other than the U.S.
Treasury, we must offer to repurchase a ratable portion of the Series A
Preferred Stock then held by the U.S. Treasury.
On any
dividend payment date for which full dividends are not paid, or declared and
funds set aside therefore, on the Series A Preferred Stock and any other parity
stock, all dividends paid or declared for payment on that dividend payment date
(or, with respect to parity stock with a different dividend payment date, on the
applicable dividend date therefore falling within the dividend period and
related to the dividend payment date for the Series A Preferred Stock), with
respect to the Series A Preferred Stock and any other parity stock shall be
declared ratably among the holders of any such shares who have the right to
receive dividends, in proportion to the respective amounts of the undeclared and
unpaid dividends relating to the dividend period.
Subject
to the foregoing, such dividends (payable in cash, stock or otherwise) as may be
determined by our board of directors, or a duly authorized committee of the
board, may be declared and paid on our common stock and any other stock ranking
equally with or junior to the Series A Preferred Stock from time to time out of
any funds legally available for such payment, and the Series A Preferred Stock
shall not be entitled to participate in any such dividend.
Redemption
Except as
provided below, the Series A Preferred Stock may not be redeemed prior to
February 15, 2012. On or after February 15, 2012, MidSouth, at its
option, subject to the approval of the Board of Governors of the Federal Reserve
System, may redeem, in whole or in part, at any time and from time to time, out
of funds legally available therefore, the shares of Series A Preferred Stock at
the time outstanding, upon notice to the holders of the Series A Preferred
Shares, at a redemption price equal to the sum of (i) $1,000 per share
liquidation price and (ii) any accrued and unpaid dividends (regardless of
whether any dividends are actually declared) to, but excluding, the date fixed
for redemption.
Notwithstanding
the foregoing, prior to February 15, 2012, MidSouth, at its option, subject
to the approval of the Board of Governors of the Federal Reserve System, may
redeem, in whole or in part, at any time and from time to time, the shares of
Series A Preferred Stock at the time outstanding, upon notice to the holders of
the Series A Preferred Share, at a redemption price equal to the sum of
(i) $1,000 per share liquidation price and (ii) any accrued and unpaid
dividends (regardless of whether any dividends are actually declared) to, but
excluding, the date fixed for redemption; provided, however, (1) MidSouth
has received aggregate gross proceeds of not less than the 25% of the aggregate
liquidation amount from one or more “qualified equity offerings”, as defined in
the Securities Purchase Agreement – Standard Terms, and
The
Series A Preferred Stock will not be subject to any mandatory redemption,
sinking fund or similar provisions. Holders of shares of Series A Preferred
Stock have no right to require the redemption or repurchase of the Series A
Preferred Stock. Our board of directors, or a duly authorized committee of the
board of directors, has full power and authority to prescribe the terms and
conditions upon which the Series A Preferred Stock will be redeemed from time to
time, subject to the provisions of the Certificate of Designations.
If fewer
than all of the outstanding shares of Series A Preferred Stock are to be
redeemed, the shares to be redeemed will be selected either pro rata from the holders of
record of shares of Series A Preferred Stock in proportion to the number of
shares held by those holders or in such other manner as our board of directors
or a duly authorized committee thereof may determine to be fair and
equitable.
We will
mail any notice of any redemption of Series A Preferred Stock by first class
mail, postage prepaid, addressed to the holders of record of the shares of
Series A Preferred Stock to be redeemed at their respective last addresses
appearing on our books. This mailing will be at least 30 days and not more than
60 days before the date fixed for redemption. Any notice mailed or otherwise
given as described in this paragraph will be conclusively presumed to have been
duly given, whether or not the holder receives the notice, and failure duly to
give the notice by mail or otherwise, or any defect in the notice or in the
mailing or provision of the notice, to any holder of Series A Preferred Stock
designated for redemption will not affect the redemption of any other Series A
Preferred Stock. Each notice of redemption will set forth the applicable
redemption date, the redemption price, the place where shares of Series A
Preferred Stock are to be redeemed, and the number of shares of Series A
Preferred Stock to be redeemed (and, if less than all shares of Series A
Preferred Stock held by the applicable holder, the number of shares to be
redeemed from the holder).
Shares of
Series A Preferred Stock that are redeemed, repurchased or otherwise acquired by
us will revert to authorized but unissued shares of our preferred
stock.
Liquidation
Rights
In the
event that we voluntarily or involuntarily liquidate, dissolve or wind up our
affairs, holders of Series A Preferred Stock will be entitled to receive an
amount per share, referred to as the total liquidation amount, equal to the
fixed liquidation preference of $1,000 per share, plus any accrued and unpaid
dividends, whether or not declared, to the date of payment. Holders of the
unpaid dividends, whether or not declared, to the date of payment. Holders of
the Series A Preferred Stock will be entitled to receive the total liquidation
amount out of our assets that are available for distribution to shareholders,
after payment or provision for payment of our debts and other liabilities but
before any distribution of assets is made to holders of our common stock or any
other shares ranking, as to that distribution, junior to the Series A Preferred
Stock.
If our
assets are not sufficient to pay the total liquidation amount in full to all
holders of Series A Preferred Stock and all holders of any shares of outstanding
parity stock, the amounts paid to the holders of Series A Preferred Stock and
other shares of parity stock will be paid pro rata in accordance with
the respective total liquidation amount for those holders. If the total
liquidation amount per share of Series A Preferred Stock has been paid in full
to all holders of Series A Preferred Stock and other shares of parity stock, the
holders of our common stock or any other shares ranking, as to such
distribution, junior to the Series A Preferred Stock will be entitled to receive
all of our remaining assets according to their respective rights and
preferences.
For
purposes of the liquidation rights, neither the sale, conveyance, exchange or
transfer of all or substantially all of our property and assets, nor the
consolidation or merger by us with or into any other corporation or by another
corporation with or into us, will constitute a liquidation, dissolution or
winding-up of our affairs.
Voting
Rights
Except as
indicated below or otherwise required by law, the holders of Series A Preferred
Stock will not have any voting rights.
Election of Two Directors upon
Non-Payment of Dividends . If the dividends on the Series A Preferred
Stock have not been paid for an aggregate of six quarterly dividend periods or
more (whether or not consecutive), the authorized number of directors then
constituting our board of directors will be increased by two. Holders of Series
A Preferred Stock, together with the holders of any outstanding parity stock
with like voting rights, referred to as voting parity stock, voting as a single
class, will be entitled to elect the two additional members of our board of
directors, referred to as the “preferred stock directors,” at the next annual
meeting (or at a special meeting called for the purpose of electing the
preferred stock directors prior to the next annual meeting) and at each
subsequent annual meeting until all accrued and unpaid dividends for all past
dividend periods have been paid in full. Upon payment in full of all accrued and
unpaid dividends, the right to elect preferred stock directors will terminate,
subject to revesting in the event that dividends on the Series A Preferred Stock
are not paid for an aggregate of six quarterly dividend periods or more (whether
or not consecutive). The election of any preferred stock director is subject to
the qualification that the election would not cause us to violate the corporate
governance requirement of the NYSE Alternext (or any other exchange on which our
securities may be listed) that listed companies must have a majority of
independent directors.
Upon the
termination of the right of the holders of Series A Preferred Stock and voting
parity stock to vote for preferred stock directors, as described above, the
preferred stock directors will immediately cease to be qualified as directors,
their term of office shall terminate immediately and the number of authorized
directors of MidSouth will be reduced by the number of preferred stock directors
that the holders of Series A Preferred Stock and voting parity stock had been
entitled to elect. The holders of a majority of shares of Series A Preferred
Stock and voting parity stock, voting as a class, may remove any preferred stock
director, with or without cause, and the holders of a majority of the shares of
Series A Preferred Stock and voting parity stock, voting as a class, may fill
any vacancy created by the removal of a preferred stock director. If the office
of a preferred stock director becomes vacant for any other reason, the remaining
preferred stock director may choose a successor to fill such vacancy for the
remainder of the unexpired term.
Other Voting Rights. So long
as any shares of Series A Preferred Stock are outstanding, in addition to any
other vote or consent of shareholders required by law or by our articles of
incorporation, as amended, the vote or consent of the holders of at least 66
2/3% of the shares of Series A Preferred Stock at the time outstanding, voting
separately as a single class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
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1.
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Any
amendment or alteration of our amended and restated articles of
incorporation to authorize or create or increase the authorized amount of,
or any issuance of, any shares of, or any securities convertible into or
exchangeable or exercisable for shares of, any class or series of capital
stock ranking senior to the Series A Preferred Stock with respect to
payment of dividends and/or distribution of assets on any liquidation,
dissolution or winding up of MidSouth;
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2.
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Any
amendment, alteration or repeal of any provision of the Certificate of
Designations for the Series A Preferred Stock so as to adversely affect
the rights, preferences, privileges or voting powers of the Series A
Preferred Stock; or
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3.
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Any
consummation of a binding share exchange or reclassification involving the
Series A Preferred Stock or of a merger or consolidation of MidSouth with
another entity, unless the shares of Series A Preferred Stock remain
outstanding following any such transaction or, if MidSouth is not the
surviving entity, are converted into or exchanged for preference
securities and such remaining outstanding shares of Series A Preferred
Stock or preference securities have rights, references, privileges and
voting powers that are not materially less favorable than the rights,
preferences, privileges or voting powers of the Series A Preferred Stock,
taken as a whole.
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With
respect to the voting rights of the Series A Preferred Stock, each holder of
Series A Preferred Stock will have one vote for each $1,000 of liquidation
preference to which such holder’s shares of Series A Preferred Stock are
entitled.
The
foregoing voting provisions will not apply if, at or prior to the time when the
vote or consent would otherwise be required, all outstanding shares of Series A
Preferred Stock have been redeemed or called for redemption upon proper notice
and sufficient funds have been set aside by us for the benefit of the holders of
Series A Preferred Stock to effect the redemption.
Pursuant
to the Letter Agreement between us and the U.S. Treasury, we have agreed, if
requested by the U.S. Treasury, to enter into a depositary arrangement pursuant
to which the shares of Series A Preferred Stock may be deposited and depositary
shares, each representing a fraction of a share of Series A Preferred Stock as
specified by the U.S. Treasury, may be issued. The shares of Series A Preferred
Stock would be held by a depositary (e.g., a bank or trust
company) reasonably acceptable to U.S. Treasury. If we enter into such a
depositary arrangement, the selling securityholders would be offering depositary
shares, each representing a fraction of a share of Series A Preferred Stock,
instead of actual whole shares of Series A Preferred Stock. The actual terms of
any such depositary arrangement would be set forth in a deposit agreement to
which we would be a party, and would be attached as an exhibit to a filing by us
that would be incorporated by reference into this prospectus.
The
following is a brief description of the terms of the warrant that may be resold
by the selling securityholders. This summary does not purport to be complete in
all respects. This description is subject to and qualified in its entirety by
reference to the warrant, a copy of which has been filed with the SEC and is
also available upon request from us.
Shares
of Common Stock Subject to the Warrant
The
warrant is initially exercisable for up to 208,768 shares of our common stock.
If we complete one or more qualified equity offerings on or prior to
December 31, 2009, that result in our receipt of aggregate gross proceeds
of not less than $20 million, which is equal to 100% of the aggregate
liquidation preference of the Series A Preferred Stock, the number of shares of
common stock underlying the warrant then held by the selling securityholders
will be reduced by 50%. The number of shares of common stock underlying to the
warrant are subject to the further adjustments described below under the heading
“—Adjustments to the Warrant.”
In
accordance with the terms of the Letter Agreement between us and the U.S.
Treasury and the related Securities Purchase Agreement – Standard Terms, the
U.S. Treasury has represented that it intends to refrain from exercising any
voting rights pertaining to our common stock which it may come to own upon
exercise of some or all of the warrant.
Exercise
of the Warrant
The
initial exercise price applicable to the warrant is $14.37 per share. The
warrant may be exercised in whole or in part at any time on or before 5:00 p.m.,
New York City time on January 9, 2019 by surrender of the warrant and a
completed notice of exercise attached as an annex to the warrant and payment of
the exercise price for the shares of common stock for which the warrant is being
exercised. The exercise price may be paid either by the withholding by MidSouth
of such number of shares of common stock issuable upon exercise of the warrant
equal to the value of the aggregate exercise price of the warrant determined by
reference to the market price of our common stock on the trading day on which
the warrant is exercised or, if agreed to by us and the holder of the warrant,
by the payment of cash equal to the aggregate exercise price. The exercise price
applicable to the warrant is subject to the further adjustments described below
under the heading “—Adjustments to the Warrant.”
Upon
exercise of the warrant, certificates for the shares of common stock issuable
upon exercise will be issued to the warrantholder. We will not issue fractional
shares upon any exercise of the warrant. Instead, the warrantholder will be
entitled to a cash payment equal to the market price of our common stock on the
last day preceding the exercise of the warrant (less the pro-rated exercise
price of the warrant) for any fractional shares that would have otherwise been
issuable upon exercise of the warrant. We will at all times reserve the
aggregate number of shares of our common stock for which the warrant may be
exercised. We have listed the shares of common stock issuable upon exercise of
the warrant with the NYSE Alternext.
Rights
as a Shareholder
The
warrantholder shall have no rights or privileges of the holders of our common
stock, including any voting rights, until (and then only to the extent) the
warrant has been exercised.
Transferability
The U.S.
Treasury may not transfer a portion of the warrant with respect to more than 50%
of common stock underlying the warrant until the earlier of the date on which
MidSouth has received aggregate gross proceeds from a qualified equity offering
of at least $20 million and December 31, 2009. The warrant, and all rights
under the warrant, are otherwise transferable.
Adjustments
to the Warrant
Adjustments in Connection with Stock
Splits, Subdivisions, Reclassifications and Combinations. The number of
shares for which the warrant may be exercised and the exercise price applicable
to the warrant will be proportionately adjusted in the event we pay dividends or
make distributions of our common stock, subdivide, combine or reclassify
outstanding shares of our common stock.
Anti-dilution Adjustment.
Until the earlier of December 19, 2011 and the date the U.S. Treasury no
longer holds the warrant (and other than in certain permitted transactions
described below), if we issue any shares of common stock (or securities
convertible or exercisable into common stock) for less than 90% of the market
price of the common stock on the last trading day prior to pricing such shares,
then the number of shares of common stock into which the warrant is exercisable
and the exercise price will be adjusted. Permitted transactions by us include
issuances:
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1.
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As
consideration for or to fund the acquisition of businesses and/or related
assets;
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2.
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In
connection with employee benefit plans and compensation related
arrangements in the ordinary course and consistent with past practice
approved by our board of directors;
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3.
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In
connection with public or broadly marketed offerings and sales of common
stock or convertible securities for cash conducted by us or our affiliates
pursuant to registration under the Securities Act, or Rule 144A thereunder
on a basis consistent with capital-raising transactions by comparable
financial institutions (but do not include other private transactions);
and
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4.
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In
connection with the exercise of preemptive rights on terms existing as of
November 21, 2008.
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Other Distributions. If we
declare any dividends or distributions other than our historical, ordinary cash
dividends, the exercise price of the warrant will be adjusted to reflect such
distribution.
Certain Repurchases. If we
effect a pro rata
repurchase of common stock, both the number of shares issuable upon
exercise of the warrant and the exercise price will be adjusted.
Business Combinations . In
the event of a merger, consolidation or similar transaction involving MidSouth
and requiring shareholder approval, the warrantholder’s right to receive shares
of our common stock upon exercise of the warrant shall be converted into the
right to exercise the warrant for the consideration that would have been payable
to the warrantholder with respect to the shares of common stock for which the
warrant may be exercised as if the warrant had been exercised prior to such
merger, consolidation or similar transaction.
Registered Sales of the Warrant.
The holders agree to sell the warrant or any portion thereof under this
registration statement only beginning 30 days after notifying MidSouth of any
such sale, during which 30-day period the U.S. Treasury and all holders of the
warrant shall take reasonable steps to agree to revisions to the warrant to
permit a public distribution of the warrant, including entering into a warrant
agreement and appointing a warrant agent.
The
authorized common stock of MidSouth consists of 10,000,000 shares, $0.10 par
value, of which 6,788,885 were issued and 6,618,219 outstanding as of, February
19, 2009.
General
Voting Rights. Each share of
common stock entitles its holder to one vote on all matters upon which
shareholders have the right to vote. The holders of common stock are not
entitled to cumulate votes in the election of directors.
Preemptive Rights. MidSouth’s
common stock does not carry preemptive subscription rights.
Liquidation. In the
event of liquidation, dissolution or winding up of MidSouth, the holders of
common stock are entitled to share ratably in all assets remaining after payment
of liabilities and after payment of preferred stock shareholders with
liquidation priority, if any.
Liability for Further Assessments.
MidSouth will not subject shareholders to further assessments on their
shares of common stock.
Sinking Fund Provision. The
common stock does not require that a separate capital reserve be maintained to
pay shareholders with preferential rights for their investment in the event of
liquidation or redemption.
Redemption or Conversion Rights.
The holders of common stock do not have a right of redemption, which is
the right to sell their shares back to MidSouth, nor do they have a right to
convert their shares to other classes or series of stock, such as preferred
stock.
Dividends. Each shareholder
is entitled to receive dividends, if and when, declared by the board of
directors out of legally available funds. The main source of funds for dividends
is the dividends we receive from MidSouth Bank; therefore, our ability to
declare dividends is highly dependent upon future earnings, financial condition,
and results of operation of MidSouth Bank as well as appropriate legal
restrictions on the bank’s ability to pay dividends and other relevant
factors.
Under the
Louisiana Business Corporation Law, MidSouth may not pay a dividend
if:
|
1.
|
MidSouth
is insolvent or would thereby be made insolvent, or
|
|
|
2.
|
The
declaration or payment thereof would be contrary to any restrictions
contained in MidSouth's articles of
incorporation.
|
Pursuant
to the Letter Agreement between us and the U.S. Treasury, including the related
Securities Purchase Agreement – Standard Terms, we may not declare or pay any
dividend or make any distribution on our common stock other than:
|
1.
|
Regular
quarterly cash dividends not exceeding $0.32 per share;
|
|
|
2.
|
Dividends
payable solely in shares of our common stock; and
|
|
|
3.
|
Dividends
or distributions of rights of junior stock in connection with a
shareholder’s rights plan.
|
The
validity of the securities being offered by this prospectus is being passed upon
for MidSouth by the law firm of Adams and Reese LLP, New Orleans,
Louisiana.
The
audited consolidated financial statements and management’s report on the
effectiveness of internal controls over financial reporting of MidSouth
incorporated in this prospectus and Registration Statement by reference to
MidSouth’s Annual Report on Form 10-K for the year ended December 31, 2007,
were audited by Porter Keadle Moore, LLP an independent registered public
accounting firm, whose reports thereon contained in such Annual Report on Form
10-K is incorporated herein by reference. Such financial statements have been
incorporated herein by reference in reliance upon such reports of Porter Keadle
Moore, LLP given upon the authority of such firm as experts in auditing and
accounting.
PART
II
INFORMATION
NOT REQUIRED TO BE IN PROSPECTUS
|
Item 14.
|
Other
Expenses of Issuance and
Distribution.
|
The
following table sets forth the estimated fees and expenses to be incurred by
MidSouth in connection with the registration of the securities being registered
under this registration statement. Except for the SEC registration fee, all
amounts are estimates.
|
Registration
Fee
|
$ | 904 | ||
|
Blue
Sky Fees
|
$ | - | ||
|
Legal
Fees and Expenses
|
$ | 5,000 | ||
|
Accounting
Fees and Expenses
|
$ | 3,500 | ||
|
Printing
Fees and Postage
|
$ | - | ||
|
Miscellaneous
|
$ | - | ||
|
TOTAL
|
$ | 9,404 | ||
|
Item 15.
|
Indemnification
of Directors and Officers.
|
Louisiana Business Corporation
Law. The Louisiana Business Corporation Law provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if:
• the
director or officer acted in good faith;
• the
director or officer reasonably believed such conduct was in, or not opposed to,
the corporation’s best interest; and
• in
connection with any criminal action or proceeding, the director or officer had
no reasonable cause to believe that his or her conduct was
unlawful.
However,
the Louisiana Business Corporation Law provides that directors or officers may
not be indemnified if they are held liable for willful or intentional misconduct
in the performance of their duties to the corporation, unless a court determines
that the director is entitled to indemnity for expenses which the court deems
proper.
MidSouth Bancorp, Inc.
MidSouth Bancorp, Inc.’s charter and bylaws provide that a director or
officer of the company will not be personally liable for monetary damages for
any action taken, or any failure to take any action, as a director or officer
except to the extent that by law a director’s or officer’s liability for
monetary damages may not be limited. This provision does not eliminate or limit
the liability of the company’s directors and officers for (a) any breach of the
director’s or officer’s duty of loyalty to the company or its stockholders, (b)
any acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) any unlawful dividend, stock repurchase or
other distribution, payment or return of assets to stockholders, or (d) any
transaction from which the director or officer derived an improper personal
benefit. This provision may preclude shareholder derivative actions and may be
construed to preclude other third-party claims against the directors and
officers.
MidSouth
Bancorp, Inc.’s charter and bylaws also provide that the company shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, including actions
by or in the right of the company, whether civil, criminal administrative or
investigative, by reason of the fact that such person is or was a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, if such
II-1
The
rights of indemnification provided in the charter and bylaws are not exclusive
of any other rights which may be available under any insurance or other
agreement, by vote of stockholders or directors (regardless of whether directors
authorizing such indemnification are beneficiaries thereof) or otherwise. In
addition, the charter authorizes the company to maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the company,
whether or not the company would have the power to provide indemnification to
such person. By action of the board of directors, the company may create and
fund a trust fund or other fund or form of self-insurance arrangement of any
nature, and may enter into agreements with its officers, directors, employees
and agents for the purpose of securing or insuring in any manner its obligation
to indemnify or advance expenses provided for in the provisions of the charter
and bylaws regarding indemnification. These provisions are designed to reduce,
in appropriate cases, the risks incident to serving as a director, officer,
employee or agent and to enable the company to attract and retain the best
personnel available.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers or persons controlling MidSouth Bancorp,
Inc. pursuant to the foregoing provisions, MidSouth Bancorp, Inc. has been
informed 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.
Certain
rules of the Federal Deposit Insurance Corporation limit the ability of certain
depository institutions, their subsidiaries and their affiliated depository
institution holding companies to indemnify affiliated parties, including
institution directors. In general, subject to the ability to purchase directors
and officers liability insurance and to advance professional expenses under
certain circumstances, the rules prohibit such institutions from indemnifying a
director for certain costs incurred with regard to an administrative or
enforcement action commenced by any federal banking agency that results in a
final order or settlement pursuant to which the director is assessed a civil
money penalty, removed from office, prohibited from participating in the affairs
of an insured depository institution or required to cease and desist from or
take an affirmative action described in Section 8(b) of the Federal Deposit
Insurance Act (12 U.S.C, (S) 1818(b)).
|
Item 16.
|
Exhibits.
|
The
following exhibits are filed or incorporated by reference into this registration
statement:
|
Exhibit
Number
|
Description
of Document
|
|
|
3.1
|
Articles
of Amendment to the Articles of Incorporation (1)
|
|
|
3.3
|
Bylaws
(2)
|
|
|
4.1
|
Warrant
to purchase Registrant’s common stock dated January 9, 2009
(3)
|
|
|
4.2
|
Letter
Agreement (including Securities Purchase Agreement – Standard Terms
attached as Exhibit A) dated January 9, 2009 between the Registrant and
the U.S. Department of the Treasury (4)
|
II-2
|
5.1*
|
Opinion
of Adams and Reese, LLP
|
|
|
12.1*
|
Computation
of consolidated ratio of earnings to combined fixed
charges
|
|
|
23.1*
|
Consent
of Porter Keadle Moore, LLP
|
|
|
23.2*
|
Consent
of Adams and Reese, LLP (contained in opinion filed as Exhibit
5.1)
|
|
|
24.1*
|
Power
of Attorney (contained in signature page of the Registration
Statement)
|
|
*
|
Filed
herewith
|
|
(1)
|
Incorporated
by reference to Exhibit 3.1 attached to the Current Report on Form 8-K
filed by the Registrant on January 14,
2009.
|
|
(2)
|
Incorporated
by reference to Registrant’s Annual Report on form 10-K filed with the
Securities and Exchange Commission on March 14,
2008.
|
|
(3)
|
Incorporated
by reference to Exhibit 4.1 attached to the Current Report on Form 8-K
filed by the Registrant on January 14,
2009.
|
|
(4)
|
Incorporated
by reference to Exhibit 10.1 attached to the Current Report on Form 8-K
filed by the Registrant on January 14,
2009.
|
|
Item 17.
|
Undertakings.
|
(a) The
undersigned registrant hereby undertakes:
(1) 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 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement; and
|
|
|
(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;
|
provided , however , that subparagraphs
(1)(i), (1)(ii), and (1)(iii) above do not apply if information required to
be included in a posteffective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
(2) 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 herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
II-3
|
(i)
|
each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement;
and
|
|
|
(ii)
|
each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall
be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which the
prospectus related, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective
date.
|
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
|
(i)
|
any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
|
|
(ii)
|
any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
(iii)
|
the
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
|
(iv)
|
any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
(b) The
undersigned registrant hereby undertakes that, for purposes 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 (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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.
(c) 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 foregoing provisions, or otherwise, 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 Securities 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
II-4
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 Securities Act and will be governed by the final adjudication
of such issue.
II-5
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Lafayette, Louisiana, on February 20, 2009.
|
MIDSOUTH
BANCORP, INC.
|
|||
|
By:
|
/s/
C.R. Cloutier
|
||
|
C.R.
Cloutier
|
|||
|
President
and Chief Executive
Officer
|
|||
S-1
POWER
OF ATTORNEY
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints C.R. Cloutier and Teri S. Stelly as his
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all pre-effective and post-effective amendments to this registration
statement, and to file the same with all exhibits hereto, and all other
documents in connection herewith, with the SEC, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, his
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Name
|
Title
|
Date
|
|
/s/
C.R. Cloutier
|
President,
Chief Executive Officer and Director (Principal Executive
Officer)
|
February
20, 2009
|
|
C.R.
Cloutier
|
||
|
/s/
Karen L. Hail
|
Chief
Operations Officer, Vice President, Secretary/Treasurer and
Director
|
February
20, 2009
|
|
Karen
L. Hail
|
||
|
/s/
Teri S. Stelly
|
Chief
Financial Officer and Controller (Principal Financial and Accounting
Officer)
|
February
20, 2009
|
|
Teri
S. Stelly
|
||
|
/s/
J.B. Hargroder, M.D.
|
Director
|
February
20, 2009
|
|
J.B.
Hargroder, M.D.
|
||
|
/s/
William M. Simmons
|
Director
|
February
20, 2009
|
|
William
M. Simmons
|
||
|
/s/
Will Charbonnet, Sr.
|
Director
|
February
20, 2009
|
|
Will
Charbonnet, Sr.
|
||
|
/s/
Clayton Paul Hillard
|
Director
|
February
20, 2009
|
|
Clayton
Paul Hillard
|
||
|
/s/
James R. Davis, Jr.
|
Director
|
February 20,
2009
|
|
James
R. Davis, Jr.
|
||
|
/s/
Joseph V. Tortorice
|
Director
|
February
20, 2009
|
|
Joseph
V. Tortorice
|
||
|
/s/
Milton B. Kidd, III
|
Director
|
February
20, 2009
|
|
Milton
B. Kidd, III
|
S-2
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
of Document
|
|
|
3.1
|
Articles
of Amendment to the Articles of Incorporation (1)
|
|
|
3.3
|
Bylaws
(2)
|
|
|
4.1
|
Warrant
to purchase Registrant’s common stock dated January 9, 2009
(3)
|
|
|
4.2
|
Letter
Agreement (including Securities Purchase Agreement – Standard Terms
attached as Exhibit A) dated January 9, 2009 between the Registrant and
the U.S. Department of the Treasury (4)
|
|
|
5.1*
|
Opinion
of Adams and Reese, LLP
|
|
|
12.1*
|
Computation
of consolidated ratio of earnings to combined fixed
charges
|
|
|
23.1*
|
Consent
of Porter Keadle Moore, LLP
|
|
|
23.2*
|
Consent
of Adams and Reese, LLP (contained in opinion filed as Exhibit
5.1)
|
|
|
24.1*
|
Power
of Attorney (contained in signature page of the Registration
Statement)
|
|
*
|
Filed
herewith
|
|
(1)
|
Incorporated
by reference to Exhibit 3.1 attached to the Current Report on Form 8-K
filed by the Registrant on January 14, 2009.
|
|
(2)
|
Incorporated
by reference to Registrant’s Annual Report on form 10-K filed with the
Securities and Exchange Commission on March 14,
2008.
|
|
(3)
|
Incorporated
by reference to Exhibit 4.1 attached to the Current Report on Form 8-K
filed by the Registrant on January 14,
2009.
|
|
(4)
|
Incorporated
by reference to Exhibit 10.1 attached to the Current Report on Form 8-K
filed by the Registrant on January 14,
2009.
|