Table of Contents
As filed with the Securities and Exchange Commission
on January 22, 2009.
Registration No. -
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
INTERNATIONAL BANCSHARES CORPORATION
(Exact name of registrant as specified in its
charter)
Texas
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|
74-2157138
|
(State or other jurisdiction of
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|
(I.R.S. Employer
|
incorporation or organization)
|
|
Identification Number)
|
1200 San Bernardo
Laredo, Texas 78040-1359
(956) 722-7611
(Address, including zip code, and telephone
number, including area code, of registrants
principal executive offices)
Dennis E Nixon
Chairman of the Board and President
International Bancshares Corporation
1200 San Bernardo
Laredo, Texas 78040-1359
(956) 722-7611
(Name, address, including zip code, and
telephone number, including area code, of registrants
agent for service)
Copy to:
Cary Plotkin Kavy
Cox Smith Matthews Incorporated
112 E. Pecan Street, Suite 1800
San Antonio, Texas 78205
(210) 554-5500
Approximate date of commencement of proposed
sale to the public
:
From time to
time after the effective date of this registration statement.
If the only securities being registered on
this Form are being offered pursuant to dividend or interest reinvestment
plans, please check the following box:
o
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:
x
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:
o
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:
o
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:
o
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:
o
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):
Large accelerated filer
x
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|
Accelerated filer
o
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Non-accelerated filer
o
(Do not check if a smaller reporting company)
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Smaller reporting company
o
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CALCULATION OF REGISTRATION FEE
Title of each class
securities
registered
|
|
Amount to be
registered
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|
Proposed
maximum
offering price
per share
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|
Proposed maximum
aggregate offering
price
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|
Amount of
registration fee
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|
Fixed Rate
Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per
share
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|
216,000
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|
$
|
1,000
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(1)
|
$
|
216,000,000
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(1)
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$
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8,488.80
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|
Warrant for
purchase of common stock, $1.00 par value per share, and underlying shares of
common stock
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1,326,238
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(2)
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$
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24.43
|
(3)
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$
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32,399,994.34
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(3)
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$
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1,273.32
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|
Total:
|
|
|
|
|
|
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|
$
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9,762.12
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|
(1) Calculated in
accordance with Rule 457(a) and includes such additional number of
shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A, as
may from time to time become issuable by reason of stock splits, stock
dividends or similar transactions.
(2) In addition to the
Fixed Rate Cumulative Perpetual Preferred Stock Series A, there are being
registered hereunder (a) a warrant for the purchase of 1,326,238 shares of
common stock with an initial per share exercise price of $24.43, (b) the
1,326,238 shares of common stock issuable upon exercise of such warrant and (c) such
additional number of shares of common stock, of a current indeterminable
amount, as may from time to time become issuable by reason of stock splits,
stock dividends and certain anti-dilution provisions set forth in such warrant,
which shares of common stock are registered hereunder pursuant to Rule 416.
(3) Calculated in
accordance with Rule 457(i) with respect to the current $24.43 per
share exercise price of the warrant.
The registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until this Registration Statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may determine.
Table of Contents
Subject
to completion, dated January 22, 2009.
The information in this prospectus is not
complete and may be changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell nor does it seek an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
PROSPECTUS
International Bancshares Corporation
Fixed
Rate Cumulative Perpetual Preferred Stock, Series A
Warrant
to Purchase 1,326,238 Shares of Common Stock
1,326,238
Shares of Common Sock
This prospectus relates to the potential resale from time to time by
selling securityholders of (i) some or all of the shares of our Fixed Rate
Cumulative Perpetual Preferred Stock, Series A, which we refer to as the Series A
Preferred Stock, (ii) a Warrant to purchase 1,326,238 shares of common
stock which we refer to in this prospectus as the warrant, and (iii) shares
of common stock issuable from time to time upon exercise of the warrant. In this prospectus, we refer to the shares of
Series A Preferred Stock, the warrant and the shares of common stock
issuable upon exercise of the warrant, collectively, as the securities. We issued and sold the Series A
Preferred Stock and the warrant to the United States Department of the Treasury
pursuant to the Letter Agreement dated December 23, 2008, and the related
Securities Purchase Agreement - Standard Terms, which we refer to as the
Purchase Agreement, between us and the Treasury Department, which we refer to
as the initial selling securityholder, in a transaction exempt from the
registration requirements of the Securities Act of 1933, as amended, which we
refer to in this prospectus as the Securities Act.
In this prospectus, we refer to the initial selling securityholder and
its successors, including transferees, as the selling securityholders. The
selling securityholders may offer the securities from time to time, directly or
through underwriters, broker-dealers or agents and in one or more public or
private transactions and at fixed prices, prevailing market prices, at prices
related to prevailing market prices or at negotiated prices. If the 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 sales of securities by the selling
securityholders.
The Series A Preferred Stock is not listed on an exchange and,
unless requested by the initial selling securityholder, we do not intend to
list the Series A Preferred Stock on any exchange.
Our common stock is traded on the NASDAQ Stock Market under the symbol IBOC. On January 21, 2009, the closing price
of our common stock on the NASDAQ Stock Market was $16.90 per share. You are urged to obtain current market
quotations of the common stock.
Our principal executive offices are located at 1200 San Bernardo,
Laredo, Texas 78040-1359, and our telephone number is (956) 722-7611.
Table of Contents
You should carefully read and consider the
risk factors that we have described in Risk Factors on page 3 before
investing in shares of the securities.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
these securities or determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
These securities are not savings accounts,
deposit accounts or other obligations of any bank or savings association and
are not insured or guaranteed by the Federal Deposit Insurance Corporation, or
any other governmental agency or instrumentality.
The
date of this prospectus is January 22, 2009.
Table of Contents
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3
that we filed with the Securities and Exchange Commission, which is also referred
to as the Commission, using the shelf registration process. Under the shelf registration process, the
selling securityholders may offer and sell the securities described in this
prospectus in one or more offerings from time to time.
We may provide a supplement to this prospectus 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. You should read both this prospectus and, if
applicable, any prospectus supplement.
If the information in this prospectus is inconsistent with a prospectus
supplement, you should rely on the information in that prospectus supplement.
See Where You Can Find More Information for more information.
You should rely only on the information contained or incorporated by
reference in this prospectus. We have
not authorized anyone to provide you with different information. This
prospectus may only be used where it is legal to sell the securities. You should not assume that the information in
this prospectus is accurate as of any date other than the date on the front
cover of those documents. Our business,
financial condition, results of operations and prospects may have changed since
those dates.
In this prospectus, the Company, registrant, we, our, ours,
and us refer to International Bancshares Corporation, which is a financial
holding company headquartered in Laredo, Texas, and its subsidiaries on a
consolidated basis, unless the context otherwise requires. References to IBC mean International Bank
of Commerce, the Companys lead bank subsidiary.
SPECIAL
CAUTIONARY NOTICE REGARD
ING FORWARD LOOKING
INFORMATION
Certain matters discussed in this registration statement, excluding
historical information, include forward-looking statements, within the meaning
of Section 27A of the Securities Exchange Act of 1933, as amended, and Section 21E
of the Securities Exchange Act of 1934, as amended, and are subject to the safe
harbor created by these sections. Although the Company believes such
forward-looking statements are based on reasonable assumptions, no assurance
can be given that every objective will be reached. The words estimate, expect,
intend, believe and project, as well as other words or expressions of a
similar meaning are intended to identify forward-looking statements.
Readers are cautioned not to place undue reliance on forward-looking
statements, which speak only as of the date of this registration statement.
Such statements are based on current expectations, are inherently uncertain,
are subject to risks and should be viewed with caution. Actual results
and experience may differ materially from the forward-looking statements as a
result of many factors.
Risk factors that could cause actual results to differ materially from
any results that are projected, forecasted, estimated or budgeted by the
Company in forward-looking statements include, among others, the following
possibilities:
1
Table
of Contents
·
Local, regional, national and international economic business
conditions and the impact they may have on the Company and the Companys
customers and their ability to transact profitable business with the Company,
including the ability of its borrowers to repay their loans according to their
terms or a change in the value of the related collateral.
·
Volatility and disruption in national and international
financial markets.
·
Government intervention in the U.S. financial system.
·
Changes in consumer spending, borrowings and savings habits.
·
Changes in interest rates and market prices, which could reduce
the Companys net interest margins, asset valuations and expense expectations.
·
Changes in the capital markets utilized by the Company and its
subsidiaries, including changes in the interest rate environment that may
reduce margins.
·
Changes in state and/or federal laws and regulations to which
the Company and its subsidiaries, as well as their customers, competitors and
potential competitors, are subject, including, without limitation, changes in
the accounting, tax and regulatory treatment of trust preferred securities, as
well as changes in banking, tax, securities, insurance and employment laws and
regulations.
·
Changes in U.S. Mexico trade, including, without limitation,
reductions in border crossings and commerce resulting from the Homeland
Security Programs called US-VISIT, which is derived from Section 110 of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
·
The loss of senior management or operating personnel.
·
Increased competition from both within and outside the banking
industry.
·
The timing, impact and other uncertainties of the Companys
potential future acquisitions including the Companys ability to identify suitable
potential future acquisition candidates, the success or failure in the
integration of their operations and the Companys ability to maintain its
current branch network and to enter new markets successfully and capitalize on
growth opportunities.
·
Changes in the Companys ability to pay dividends on its Common
Stock or Series A Preferred Stock.
·
The effects of the proceedings pending with the Internal
Revenue Service regarding the Companys lease financing transactions.
·
Additions to the Companys loan loss allowance as a result of
changes in local, national or international conditions which adversely affect
the Companys customers.
·
Greater than expected costs or difficulties related to the
development and integration of new products and lines of business.
·
Changes in the soundness of other financial institutions with
which the Company interacts.
·
Political instability in the United States and Mexico.
·
Technological changes.
·
Acts of war or terrorism.
·
Natural disasters.
·
Reduced earnings resulting from the write down of the carrying
value of securities held in our securities available-for-sale portfolio
following a determination that the securities are other-than-temporarily
impaired.
2
Table of Contents
·
The effect of changes in accounting policies and practices as
may be adopted by the regulatory agencies, as well as the Public Company
Accounting Oversight Board, the Financial Accounting Standards Board and other
accounting standards setters.
It is not possible to foresee or identify all such factors. The Company makes no commitment to update any
forward-looking statement, or to disclose any facts, events or circumstances
after the date hereof that may affect the accuracy of any forward-looking
statement, unless required by law.
RISK
FACTORS
An investment in our securities involves significant risks. You should carefully consider the risks
described below and the risk factors incorporated by reference before making an
investment decision. These risks are
described elsewhere in this registration statement and in our other filings
with the Securities and Exchange Commission, including our Annual Report on Form 10-K
for the year ended December 31, 2007 (Form 10-K) and our Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2008, June 30,
2008 and September 30, 2008. Our
business, financial condition or results of operations could be materially
adversely affected by any of these risks and you may lose all or part of your
investment. This prospectus also
contains forward-looking statements.
Please see Special Cautionary Notice Regarding Forward-Looking
Information for risks associated with such information.
Costs associated
with sale of Series A Preferred Stock to the U.S. Treasury
In connection with our sale of Series A Preferred Stock to the
Treasury Department, the Company also issued to the Treasury Department a
warrant to purchase 1,326,238 shares of
our common stock. The terms of the transaction
with Treasury will result in limitations on our ability to pay dividends and
repurchase our shares. Until December 23,
2011 or until Treasury no longer holds any shares of the Series A
Preferred Stock, the Company will not be able to increase cash dividends above
current levels ($0.33 per share of common stock on a semi-annual basis) nor
repurchase any of our shares without the initial selling securityholders
approval, with limited exceptions, most significantly repurchases in connection
with benefit plans. In addition, we will
not be able to pay any dividends at all on our common stock unless we are
current on our dividend payments on the Series A Preferred Stock. These restrictions, as well as the dilutive
impact of the warrant, may have a negative effect on the market price of our
common stock.
Unless the Company is able to redeem the Series A Preferred Stock
prior to February 15, 2014, the cost of this capital will increase
substantially on that date, from 5.00% on the liquidation preference of $1,000
per share of Series A Preferred Stock (approximately $10,800,000 million
annually) to 9.00% on the liquidation preference of $1,000 per share of Series A
Preferred Stock (approximately $19,440,000 million annually). Depending on our financial condition at the
time, this increase in dividends on the Series A Preferred Stock could
have a negative effect on our liquidity.
Future offerings of debt, which would be senior to our common stock
upon liquidation, and/or preferred equity securities which may be senior to our
common stock for purposes of dividend distributions or upon liquidation, may
adversely affect the market price of our common stock.
3
Table of Contents
In the future, we may attempt to increase our capital resources or, if
our or our banking subsidiaries capital ratios fall below the required
minimums, we or our banking subsidiaries could be forced to raise additional
capital by making additional offerings of debt or preferred equity securities,
including medium-term notes, trust preferred securities, senior or subordinated
notes and preferred stock. Upon
liquidation, holders of our debt securities and shares of preferred stock and
lenders with respect to other borrowings will receive distributions of our
available assets prior to the holders of our common stock. Additional equity offerings may dilute the
holdings of our existing shareholders or reduce the market price of our common
stock, or both. Holders of our common
stock are not entitled to preemptive rights or other protections against
dilution.
You may not receive
dividends on the common stock.
Holders of our common stock are entitled to receive dividends only
when, as and if declared by our board of directors. Although we have historically declared cash
dividends on our common stock, we are not required to do so and our board of
directors may reduce or eliminate our common stock dividend in the future. Further, the terms of the Series A
Preferred Stock limit our payment of dividends on common stock, as described
above. This could adversely affect the
market price of our common stock.
We may experience
increases in the cost of compensation programs.
In addition, pursuant to the Purchase Agreement we adopted the initial
selling securityholders standards for executive compensation for the period
during which the initial selling securityholder holds the equity issued
pursuant to the Purchase Agreement, including the common stock that may be
issued pursuant to the warrant. These
standards include an agreement not to deduct for tax purposes executive
compensation in excess of $500,000 for each applicable senior executive. This change to the deductibility limit on
executive compensation will likely increase the overall cost of our
compensation programs in future periods if the compensation exceeds the
deductibility limit.
OUR
COMPANY
We are a financial holding company headquartered in Laredo, Texas. We provide a broad array of financial
services through 263 facilities and 420 ATMs serving 101 communities in Texas
and Oklahoma.
We were originally incorporated under the laws of the State of Delaware
in 1979, and effective June 7, 1995, our state of incorporation was
changed from Delaware to Texas. Our
principal executive offices are located at 1200 San Bernardo, Laredo, Texas
78040 and our telephone number is (956) 722-7611. Our website can be accessed at
http//www.ibc.com. Information contained
in our website does not constitute part of, and is not incorporated into, this
prospectus.
At September 30, 2008 we had consolidated total assets of $11.5
billion, total loans of $5.7 billion, total deposits of $7 billion and
shareholders equity of $995 million.
4
Table of Contents
USE OF PROCEEDS
We will not receive any proceeds from sales of the securities by the
selling securityholders.
RATIOS
OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
We had no outstanding shares of preferred stock during any of the years
ended December 31, 2007, 2006, 2005, 2004 and 2003, or during the nine
months ended September 30, 2008. The following table sets forth our
consolidated ratios of earnings to fixed charges for each of the periods
indicated.
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Nine Months Ended
September 30, 2008
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Years ended December 31,
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2008
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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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Ratios of earnings to fixed charges,
excluding interest on deposits
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3.0
|
x
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2.3
|
x
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2.1
|
x
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2.9
|
x
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4.4
|
x
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5.0
|
x
|
Ratios of earnings to fixed charges,
including interest on deposits
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1.8
|
x
|
1.5
|
x
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1.5
|
x
|
2.0
|
x
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2.6
|
x
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2.9
|
x
|
We computed the ratio of earnings to fixed charges by dividing earnings
by fixed charges. For purposes of
computing this ratio, earnings consist of income before provision for income
taxes and minority interest plus fixed charges.
Fixed charges consist of the sum of interest expense on indebtedness,
including amortization of debt issuance costs, and one-third of rental expense,
which we believe is representative of the interest factor.
DESCRIPTION
OF SERIES A PREFERRED STOCK
The following is a summary of the terms of the Series A Preferred
Stock that may be sold by the selling securityholders. This summary does not purport to be complete
in all respects. It is subject to and
qualified in its entirety by reference to our articles of incorporation and
amendments, including the certificate of designation with respect to the Series A
Preferred Stock, copies of which have been filed with the Commission and are
also available from us upon request.
General
Under our articles of incorporation, as amended, we have authority to
issue up to 25,000,000 shares of preferred stock, $0.01 par value per
share. Our board of directors has
designated 216,000 shares of our Preferred Stock as Fixed Rate Cumulative
Perpetual Preferred Stock, Series A, all of which shares were issued to
the initial selling securityholder 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.
5
Table of Contents
Dividends Payable
Holders of shares of Series A Preferred Stock are entitled to
receive if, as and when declared by our board of directors or a duly authorized
committee of the board, out of assets legally available for payment, cumulative
cash dividends at a per annum rate of 5% on the liquidation preference of
$1,000 per share of Series A Preferred Stock with respect to each dividend
period from December 23, 2008 to, but excluding, February 15,
2014. From and after February 15,
2014, holders of shares of Series A Preferred Stock are entitled to
receive cumulative cash dividends at a per annum rate of 9% per share on the
liquidation preference of $1,000 per share of Series A Preferred Stock
with respect to each dividend period thereafter.
Dividends are payable quarterly in arrears on each February 15, May 15,
August 15 and November 15, starting with February 15, 2009. Each such date is referred to as a dividend
payment date. 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 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.
We are required to provide written notice to the holders of shares of Series A
Preferred Stock 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.
Additionally, we are restricted from paying any dividends on our
preferred stock if required interest payments on our outstanding junior
subordinated debentures are not made or deferred. As of the date of this
prospectus, we had $201 million outstanding in junior subordinated deferrable
interest debentures. The junior
subordinated debentures relate to eight issuances and mature on dates ranging
from June 2031 to September 2037, but are redeemable at our option at
par plus accrued and unpaid interest on or after the dates set forth in the
chart below. The Company has the right,
unless an Event of Default (as defined in the respective Indentures) has
occurred and is continuing, to defer payment of interest on the debentures for
up to ten consecutive semi-annual periods on the issuance referred to as Trust
I and for up to twenty consecutive quarterly periods on the issuances referred
to as Trusts VI, VII, VIII, IX, X, XI and XII. The redemption prior to maturity
of any of the Debentures may require the prior approval of the Federal Reserve
and/or other regulatory bodies.
6
Table of Contents
The following table illustrates key information about each of the
debenture issuances and their interest rates at September 30, 2008:
|
|
Junior
Subordinated
Deferrable
Interest
Debentures
|
|
Repricing
Frequency
|
|
Interest
Rate
|
|
Interest Rate
Index(1)
|
|
Maturity Date
|
|
Optional
Redemption Date
|
|
|
|
(in
thousands)
|
|
|
|
|
|
|
|
|
|
|
|
Trust I
|
|
$
|
10,313
|
|
Fixed
|
|
10.18
|
%
|
Fixed
|
|
June 2031
|
|
June 2011
|
|
Trust VI
|
|
$
|
25,774
|
|
Quarterly
|
|
6.25
|
%
|
LIBOR + 3.45
|
|
November 2032
|
|
November 2008
|
|
Trust VII
|
|
$
|
10,310
|
|
Quarterly
|
|
6.05
|
%
|
LIBOR + 3.25
|
|
April 2033
|
|
October 2008
|
|
Trust VIII
|
|
$
|
25,774
|
|
Quarterly
|
|
5.84
|
%
|
LIBOR + 3.05
|
|
October 2033
|
|
October 2008
|
|
Trust IX
|
|
$
|
41,238
|
|
Fixed
|
|
7.10
|
%
|
Fixed
|
|
October 2036
|
|
October 2011
|
|
Trust X
|
|
$
|
34,021
|
|
Fixed
|
|
6.66
|
%
|
Fixed
|
|
February 2037
|
|
February 2012
|
|
Trust XI
|
|
$
|
32,990
|
|
Fixed
|
|
6.82
|
%
|
Fixed
|
|
July 2037
|
|
July 2012
|
|
Trust XII
|
|
$
|
20,619
|
|
Fixed
|
|
6.85
|
%
|
Fixed
|
|
September 2037
|
|
September 2012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
201,039
|
|
|
|
|
|
|
|
|
|
|
|
(1)
Trust IX, X, XI and XII accrue interest at a
fixed rate for the first five years, then floating at LIBOR + 1.62%,
1.65%, 1.62% and 1.45% thereafter, respectively.
We are subject to various regulatory policies and requirements relating
to the payment of dividends, including requirements to maintain adequate
capital above regulatory minimums. The
Board of Governors of the Federal Reserve System, which is also referred to as
the Federal Reserve Board, is authorized under applicable law and regulations
to determine, under certain circumstances relating to our financial condition,
that the payment of dividends would be an unsafe or unsound practice and to
prohibit payment thereof. In addition,
we are subject to Texas 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:
·
senior to our common stock and all other equity securities
designated as ranking junior to the Series A Preferred Stock; and
·
equally with all other equity securities designated as ranking
on a parity with the Series A Preferred Stock, which is referred to as
parity stock, with respect to the payment of dividends and distribution of
assets upon any liquidation, dissolution or winding-up of the Company.
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 may be paid or declared on our 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
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stock or other junior stock unless we have paid all accrued dividends
on the Series A Preferred Stock for all prior dividend periods in full,
with the following exceptions:
·
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 up to the increase
in diluted shares outstanding resulting
from the grant, vesting or exercise of equity-based compensation;
·
purchases or other acquisitions by any broker-dealer
subsidiaries of the Company 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;
·
purchases or other acquisitions by any broker-dealer
subsidiaries of the Company for resale pursuant to an offering by the Company
of our stock that is underwritten by the related broker-dealer subsidiary;
·
any dividends or distributions of rights or junior stock in
connection with any shareholders rights plan or repurchases of rights pursuant
to any shareholders rights plan;
·
acquisition of record ownership of junior stock or parity stock
for the beneficial ownership of any other person who is not the Company or a
subsidiary of the Company, including as trustee or custodian; and
·
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 December 23, 2008 or any
subsequent agreement for the accelerated exercise, settlement or exchange
thereof for common stock.
If we repurchase shares of Series A Preferred Stock from a holder
other than the initial selling securityholder, we must also offer to repurchase
a ratable portion of the Series A Preferred Stock then held by the initial
selling securityholder.
On any dividend payment date for which full dividends on the Series A
Preferred Stock and any other parity stock are not paid, or declared and
therefor funds set aside, 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 therefor 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, whether 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.
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Redemption
The Series A Preferred Stock may not be
redeemed prior to February 15, 2012 unless we have received aggregate
gross proceeds from one or more qualified equity offerings (as described below)
equal to $54,000,000, which equals 25% of the aggregate liquidation amount of
the Series A Preferred Stock on the date of issuance. If we have received such proceeds, we may
redeem the Series A Preferred Stock, subject to the approval of Federal
Reserve Board, in whole or in part, upon notice as described below, up to a
maximum amount equal to the aggregate net cash proceeds received by us from
such qualified equity offerings. A qualified
equity offering is a sale and issuance for cash by us, to persons other than
the Company or its subsidiaries after December 23, 2008, of shares of
perpetual preferred stock, common stock or a combination thereof, that in each
case qualify as tier 1 capital of the Company at the time of issuance under the
applicable risk-based capital guidelines of the Federal Reserve Board. Qualified equity offerings do not include
issuances made in connection with acquisitions, issuances of trust preferred securities
and issuances of common stock and/or perpetual preferred stock made pursuant to
agreements or arrangements entered into, or pursuant to financing plans that
were publicly announced, on or prior to October 13, 2008.
After February 15, 2012, the Series A
Preferred Stock may be redeemed at any time, subject to the approval of the
Federal Reserve Board, in whole or in part, subject to notice as described
below.
In any redemption, the required redemption
price would be an amount equal to the per share liquidation amount plus accrued
and unpaid dividends up to but excluding the date of redemption.
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.
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 committee thereof may
determine to be fair and equitable.
We will mail 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. The 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
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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 the status of 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, which is 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 Series A Preferred Stock will be entitled to receive
the total liquidation amount out of our assets, if any, 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
amounts 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 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, which parity stock is 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.
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 NASDAQ Global Select Market System (or
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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 the Company
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, 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:
·
any
amendment or alteration of our 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 the Company;
·
any
amendment, alteration or repeal of any provision of the certificate of
designations for the Series A Preferred Stock so as to affect adversely
the rights, preferences, privileges or voting powers of the Series A
Preferred Stock; or
·
any
consummation of a binding share exchange or reclassification involving the Series A
Preferred Stock or of a merger or consolidation of the Company with another
entity, unless the shares of Series A Preferred Stock remain outstanding
following any such transaction or, if
the Company 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.
To the extent of the voting rights of the Series A
Preferred Stock, each holder of Series A Preferred Stock will have one
vote for each such share on any matter on which holders of Series A
Preferred Stock are entitled to vote, including any action by written consent.
The foregoing voting provisions will not
apply if, at or prior to the time the vote or consent would otherwise be
required, all outstanding shares of Series A Preferred Stock have
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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.
DESCRIPTION OF
WARRANT TO PURCHASE COMMON STOCK
The following is a summary 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. It is subject to and
qualified in its entirety by reference to the warrant, a copy of which has been
filed with the Commission and is also available from us upon request.
Shares
of Common Stock Subject to the Warrant
The warrant is initially exercisable for
1,326,238 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
$216,000,000, 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% to 663,119 shares. The number of
shares subject to the warrant are subject to the further adjustments described
below under the heading Adjustments to the Warrant.
Exercise
of the Warrant
The initial exercise price applicable to the
warrant is $24.43 per share of common stock for which the warrant may be
exercised. The warrant may be exercised at any time on or before December 23,
2018 by surrender of the warrant and a completed notice of exercise attached as
an annex to the warrant and the 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 the Company of the number of shares of common stock issuable
upon exercise of the warrant that is 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 warrantholder, 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
NASDAQ Stock Market.
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.
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Transferability
The initial selling securityholder may not
transfer a portion of the warrant with respect to more than 663,119 shares of
common stock until the earlier of the date on which the Company has received
aggregate gross proceeds from a qualified equity offering of at least
$216,000,000 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 23,
2011 and the date the initial selling securityholder 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 unless such issuance constitutions a Permitted Transaction. Permitted Transactions include issuances:
·
as
consideration for or to fund the acquisition of businesses and/or related
assets;
·
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;
·
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
·
in
connection with the exercise of preemptive rights on terms existing as of December 23,
2008.
Other Distributions
.
The exercise price of the warrant will be adjusted to reflect any dividends or
distributions that we declare, other than our historical, ordinary cash
dividends.
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 the Company and requiring shareholder
approval, the warrantholders right to receive shares of our common stock upon
exercise of the warrant shall be converted into the right to receive on
exercise of the warrant 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.
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DESCRIPTION OF COMMON
STOCK
General
We are authorized by our articles of
incorporation, as amended, to issue up to 275,000,000 shares of common stock,
$1.00 par value per share, of which 68,596,690 shares were outstanding as of January 21,
2009.
Holders of our common stock are entitled to
receive dividends if, as and when declared by our board of directors out of any
funds legally available for the payment of dividends. We will pay dividends on our common stock
only if we have paid or provided for the payment of all dividends on our then
outstanding series of preferred stock entitled to preference in the receipt of
dividends, for the then current period and, in the case of any cumulative
preferred stock, all prior periods. Our
preferred stock also has such other preferences over our common stock as
currently, or as may be, fixed by our board of directors. We are subject to various regulatory policies
and requirements relating to the payment of dividends, including requirements
to maintain adequate capital above regulatory minimums. The Board of Governors of the Federal Reserve
System, which is also referred to as the Federal Reserve Board, is authorized
under applicable law and regulations to determine, under certain circumstances
relating to the financial condition of a bank holding company that the payment
of dividends would be an unsafe or unsound practice and to prohibit payment
thereof. In addition, we are subject to
Texas state laws relating to the payment of dividends.
Holders of our common stock are also
entitled, upon our liquidation, and after payment of all valid claims of
creditors and the preferences of Series A Preferred Stock, and any other
class or series of preferred stock outstanding at the time of liquidation, to
receive pro rata distributions of our net assets.
Holders of our common stock are entitled to
one vote for each share held of record on all matters submitted to a vote of
shareholders. Holders of shares of
common stock are not entitled to cumulative voting rights in the election of
directors. Shares of our common stock
are not redeemable and holders of our common stock have no subscription,
conversion or preemptive rights in their capacities as such.
Our common stock is listed on the NASDAQ
Stock Market under the ticker symbol IBOC.
Outstanding shares of our common stock are validly issued, fully paid
and non-assessable. Holders of our common stock are not, and will not be,
subject to any liability as shareholders.
Blank Check Preferred Stock
216,000 shares of our preferred stock is
presently designated as Series A Preferred Stock; the remaining 24,784,000
unissued shares of preferred stock are typically referred to as blank check
preferred stock. This term refers to
stock for which the rights and restrictions are determined by the board of
directors of a corporation. Except in
limited circumstances, our articles of incorporation authorize our board of
directors to issue new shares of common stock or preferred stock without
further shareholder action.
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The issuance of additional common or
preferred stock may be viewed as having adverse effects upon the holders of
common stock. Holders of our common
stock will not have preemptive rights with respect to any newly issued
stock. Our board of directors could
adversely affect the voting power of holders of our stock by issuing shares of
preferred stock with certain voting, conversion and/or redemption rights. In the event of a proposed merger, tender
offer or other attempt to gain control of the Company that the board of
directors does not believe to be in the best interests of its shareholders, the
board of directors could issue additional preferred stock which could make any
such takeover attempt more difficult to complete. Blank check preferred stock may also be used
in connection with the issuance of a shareholder rights plan, sometimes called
a poison pill. Our board of directors
has not approved any plan to issue preferred stock for this purpose. Our board of directors does not intend to
issue any preferred stock except on terms that the board deems to be in the
best interests of the Company and its shareholders.
Anti-Takeover
Provisions under Texas law, our Articles of Incorporation and By-laws
The provisions of Texas law and our amended
and restated by-laws which we summarize below may have an anti-takeover effect
and may delay, defer or prevent a tender offer or takeover attempt that a
shareholder might consider in his or her best interest, including those
attempts that might result in a premium over the market price for the common
stock.
Business Combination
Under Texas Law
.
We are a Texas corporation and, are subject to Part Thirteen of the
Texas Business Corporation Act, or TBCA.
In general, this law will prevent us from engaging in a business
combination with an affiliated shareholder, or any affiliate or associate of an
affiliated shareholder, for a three-year period after the date such person
became an affiliated shareholder, unless:
·
our board of directors approves the
acquisition of shares that causes such person to become an affiliated
shareholder before the date such person becomes an affiliated shareholder;
·
our board of directors approves the
business combination before the date such person becomes an affiliated
shareholder, or
·
holders of at least two-thirds of our
outstanding voting shares not beneficially owned by the affiliated shareholder
or its affiliates or associates approve the business combination within six
months after the date such person becomes an affiliated shareholder.
Under this law, any person that owns or has
owned 20% or more of our voting shares during the preceding three-year period
is an affiliated shareholder. The law
defines business combination generally as including:
·
mergers, share exchanges or
conversions involving an affiliated shareholder;
·
dispositions of assets involving an
affiliated shareholder;
·
having an aggregate value equal to
10% ore more of the market value of our assets;
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·
having an aggregate value equal to
10% or more of the market value of our outstanding common stock; or
·
representing 10% or more of our
earning power or net income;
·
issuances or transfers of securities
by us to an affiliated shareholder other than on a pro rata basis;
·
plans or agreements relating to our
liquidation or dissolution involving an affiliated shareholder;
·
reclassifications, recapitalizations,
mergers or other transactions that would have the effect of increasing an
affiliated shareholders percentage ownership of our outstanding voting stock;
and
·
the receipt of tax, guarantee,
pledge, loan or other financial benefits by an affiliated shareholder other
than proportionally as one of our shareholders.
Advance Notice
Procedure for Shareholder Proposals
. Our by-laws establish an advance notice
procedure for the nomination of candidates for election as directors as well as
for shareholder proposals to be considered at annual meetings of
shareholders. In general, notice of
intent to nominate a director must contain specific information concerning the
person to be nominated and must be delivered to or mailed and received at our
principal executive offices as follows:
With respect to an election to be held at a
special meeting of shareholders for the election of directors, not earlier than
the 90
th
day prior to the special meeting and not later
than the close of business on the later of the 60
th
day prior to the special meeting or the 10
th
day following the day on which public
disclosure is first made of the date of the special meeting and of the nominees
proposed by the board of directors to be elected at such meeting. Shareholders may not nominate persons for
election to the board of directors at any special meeting of shareholders
unless the business to be transacted at the special meeting, as set forth in
the notice of the special meeting, includes the election of directors.
Notice of shareholders intent to raise
business at an annual meeting, including a nomination of candidate for election
as director, must be delivered to or mailed and received at our principal
executive offices not later than 60 days nor more than 90 days prior to the
first anniversary of the date of the preceding years annual meeting. Proposals from shareholders which are
intended to be included in the proxy statement relating to an annual meeting of
shareholders must comply with Rule 14a-8 under the Exchange Act, which
requires that the proposal be received not less than 120 calendar days before
the date of the Companys proxy statement released to shareholders in
connection with the previous years annual meeting. These procedures may operate to limit the
ability of shareholders to bring business before a shareholders meeting,
including with respect to the nomination of directors or considering any
transaction that could result in a change of control.
Limitation of
Liability of Directors
. Our articles of incorporation and by-laws
provide for indemnification of our directors to the fullest extent permitted by
applicable law. Article 2.02-1 of
the TBCA provides that a Texas corporation may indemnify its directors and
officers against
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expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by them in connection with any suit or proceeding, whether
civil, criminal, administrative or investigative if, in connection with the
matters in issue, they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the corporation
and, in connection with any criminal suit or proceeding, if in connection with
the matters in issue, they had no reasonable cause to believe their conduct was
unlawful. These provisions may have the
practical effect in certain cases of eliminating the ability of our
shareholders to collect monetary damages from directors and executive
officers. We believe that the provisions
in our articles of incorporation and by-laws are necessary to attract and
retain qualified persons as directors and executive officers.
Transfer
Agent and Registrar
The transfer agent and registrar for our
common stock is IBC.
Regulatory
Restrictions on Ownership
The Bank
Holding Company Act requires any bank holding company, as defined in the Bank
Holding Company Act, to obtain the approval of the Federal Reserve Board prior
to the acquisition of 5% or more of our common stock. Any person, other than a bank holding
company, is required to obtain prior approval of the Federal Reserve Board to
acquire 10% or more of our common stock under the Change in Bank Control
Act. Any holder of 25% or more of our
common stock, or a holder of 5% or more if such holder otherwise exercises a controlling
influence over us, may be subject to regulation as a bank holding company
under the Bank Holding Company Act.
PLAN OF DISTRIBUTION
The selling securityholders and their
successors, including their transferees, may sell the securities directly to
purchasers or indirectly through underwriters, broker-dealers or agents, who
may receive compensation in the form of discounts, concessions or commissions
from the selling securityholders or purchasers of the securities. The 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
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions,
which may involve crosses or block transactions:
·
on any
national securities exchange or quotation service on which the preferred stock
or the common stock may be listed or quoted
at the time of sale, including, as of the date of this prospectus, the
NASDAQ Global Select Market in the case of the common stock;
·
in the
over-the-counter market;
·
in
transactions otherwise than on such exchanges or services or in the
over-the-counter market; or
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·
through
the writing of options, whether the options are listed on an options exchange
or otherwise.
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
in turn may 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 may also sell the common stock issuable upon exercise of the
warrant short 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
securities will be the purchase price of the 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 Securities Exchange Act of 1934, or 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 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 NASDAQ Stock Market pursuant to Rule 153
under the Securities Act.
At
the time a particular offer of securities 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 item constituting compensation, any discount, commission or concession
allowed or reallowed or paid to any dealer, and the proposed selling price to
the public.
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We
do not intend to apply for listing of the Series A Preferred Stock on any
securities exchange or for inclusion of the Series A Preferred Stock in
any automated quotation system unless requested by the initial selling
shareholder. 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.
SELLING
SECURITYHOLDERS
On
December 23, 2008, we issued the securities covered by this prospectus to
the United States Department of the Treasury, which is the initial selling
securityholder, in a transaction exempt from the registration requirements of
the Securities Act. This initial selling
securityholder, 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 that may be offered under this prospectus for the account
of the selling securityholders are:
·
216,000
shares of Series A Preferred Stock, representing beneficial ownership of
100% of the shares of Series A Preferred Stock outstanding on the date of
this prospectus;
·
a warrant
to purchase 1,326,238 shares of our common stock; and
·
1,326,238
shares of our common stock issuable upon exercise of the warrant, which shares,
if issued, would represent ownership of approximately 1.9% of our common stock
as of December 23, 2008.
Beneficial
ownership is determined in accordance with the rules of the Commission and
includes voting or investment power with respect to the securities. To our
knowledge, the initial selling securityholder has sole voting and investment
power with respect to the securities.
We
do not know whether, when or in what amounts the selling securityholders may
offer any of the securities for sale.
The selling securityholders might not sell all or any of the securities
offered by this prospectus. For these reasons
we cannot estimate the number of the securities that will be held by the
selling securityholders after completion of the offering.
The
initial selling securityholder has not had a material relationship with us,
other than in connection with its purchase of the securities.
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.
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LEGAL
MATTERS
The
validity of the Series A Preferred Stock, the warrant and the common stock
offered hereby will be passed upon for us by Cox Smith Matthews
Incorporated. If legal matters in
connection with offerings made pursuant to this prospectus are passed upon by
counsel for the underwriters, dealers or agents, if any, such counsel will be
named in the prospectus supplement relating to such offering.
EXPERTS
The
consolidated financial statements of the Company for the year ended December 31,
2007 appearing in the Companys Annual Report on Form 10-K for the year
ended December 31, 2007 and the effectiveness of the Companys internal
control over financial reporting as of December 31, 2007, have been
audited by McGladrey & Pullen, LLP, an independent registered public
accounting firm, as set forth in their reports thereon, included therein, and
incorporated herein by reference, and upon the authority of said firm as
experts in accounting and auditing. The consolidated
financial statements of International Bancshares Corporation as of December 31,
2006, and for each of the years in the two-year period ended December 31,
2006, have been incorporated by reference herein in reliance upon the report of
KPMG LLP, independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing. The audit report covering the December 31, 2006,
consolidated financial statements contains an explanatory paragraph that states
that the Company adopted Statement of Financial Accounting Standards No. 123R,
Share-based Payment, to account for stock-based compensation effective January 1,
2006. The Company has agreed to
indemnify and hold KPMG harmless against and from any and all legal costs and
expenses incurred by KPMG in successful defense of any legal action or
proceeding that arises as a result of KPMGs consent to the inclusion (or
incorporation by reference) of its audit report on the Registrants past
financial statements included (or incorporated by reference) in this Form S-3.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus is part of a registration statement on Form S-3 that we filed
with the Commission under the Securities Act.
The registration statement, including the attached Exhibits, contains
additional relevant information about us and the securities offered by this
prospectus. The rules and
regulations of the Commission allow us to omit certain information included in
the registration statement from this prospectus. You can obtain a copy of the registration
statement from the Commission at the address provided below or on the
Commissions Internet site.
We
file annual, quarterly and current reports, proxy statements and other
information with the Commission. Our Commission
filings are available to the public over the Internet at the Commissions
website at http:/www.sec.gov. Copies of
information filed by us with the Commission are also available on our website
at http://www.ibc.com. Information on
our website is not a part of this prospectus. You may also read and copy any
document we file at the Commissions public reference room, 100 F Street, N.E.,
Washington, D.C. 20549. Telephone the Commission at 1-800-SEC-0330 for further
information on the operation of its public reference room.
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Our
common stock is listed on the NASDAQ Stock Market. You may also inspect
reports, proxy statements and other information at the offices of the NASDAQ
Stock Market, One Liberty Plaza, 165 Broadway, New York, New York 10006.
The
Commission allows us to incorporate by reference in this prospectus
information we file with it, which means that we can disclose important
information to you by referring you to other documents. The information
incorporated by reference is considered to be a part of this prospectus, and
information that we file later with the Commission will automatically update and
supersede information contained in documents filed earlier with the Commission
or contained in this prospectus. In all cases, you should rely on the later
information that is different from the information included in this prospectus.
We
incorporate by reference in this prospectus the documents listed below and all
future filings we make with the Commission under Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, prior to the termination of the offering to
which this registration statement relates, except to the extent that any
information contained in such filings is deemed furnished rather than filed
in accordance with Commission rules:
·
Annual
Report on Form 10-K for the year ended December 31, 2007;
·
Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2008, June 30,
2008 and September 30, 2008;
·
The
definitive Proxy Statement for our Annual Meeting of Shareholders held on May 19,
2008;
·
The
definitive Proxy Statement of our Special Meeting of Shareholders held on December 19,
2008;
·
Current
Reports on Form 8-K filed on February 25, 2008, May 5, 2008, August 1,
2008, September 18, 2008, October 23, 2008, November 20, 2008,
and December 23, 2008; and
·
The
description of the Registrants Common Stock is contained in Registrants
Registration Statement filed pursuant to Section 12 of the Exchange Act
and is incorporated in this Registration Statement by reference, including any
subsequent amendments or reports filed for the purpose of updating such
description.
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You
may request a copy of these filings, at no cost, by writing or telephoning us
at the following address:
International Bancshares Corporation
1200 San Bernardo
Laredo, Texas 78040-1359
(956) 722-7611
Attention: Investor Relations
22
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PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and
Distribution
.
The following table sets forth estimates (except the Commission
registration fee) of the various expenses that will be incurred in connection
with the sale and distribution of the securities being registered hereby, all
of which expenses will be borne by the Company (except any underwriting
discounts and commissions and expenses incurred by the selling securityholders
for brokerage, accounting, tax or legal services or any other expenses incurred
by the selling securityholders in disposing of the securities).
Commission registration fee
|
|
$
|
9,762
|
|
Legal fees and expenses
|
|
$
|
75,000
|
|
Accounting fees and expenses
|
|
$
|
25,000
|
|
Printing expenses
|
|
$
|
20,000
|
|
Miscellaneous fees and expenses
|
|
$
|
0.00
|
|
Total expenses
|
|
$
|
129,762
|
|
Item
15.
Indemnification
of Directors and Officers
.
Texas law permits a corporation
to provide indemnification or advancement of expenses against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by a
person in connection with a proceeding if it is determined:
·
that the person
conducted himself or herself in good faith;
·
in the case of
conduct in his or her official capacity, reasonably believed that his or her
conduct was in the corporations best interest;
·
in all other
cases that his or her conduct was not opposed to the corporations best
interests; and
·
in the case of a
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful.
Under Texas law, indemnification by the corporation is mandatory if a
director or officer is wholly successful on the merits or otherwise, in the
defense of the proceeding.
Our articles of incorporation, as amended, provide for indemnification
rights to our officers and directors to the maximum extent allowed by Texas
law. Pursuant to the TBCA and Article IX
of our articles of incorporation, as amended, we will indemnify any person who
was, is, or threatened to be made a named defendant or respondent to an action,
suit, or proceeding, whether criminal, civil, administrative or investigative,
by reason of the fact that the person (i) is or was a director or officer
of the corporation, or (ii) while a director or officer of the
corporation, is or was servicing at the request of the corporation as a
director, officer, partner,
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venturer, proprietor, trustee, employee or similar functionality or
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against
expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding. Our
articles of incorporation, as amended, authorize us to purchase and maintain liability
insurance for those persons to the fullest extent permitted by the TBCA.
Our by-laws provide that the Company shall indemnify to the fullest
extent permitted by Texas law any person who was, is or is threatened to be
made a named defendant or respondent to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be, in the case of conduct in his
official capacity as a director, officer, employee or agent of the corporation,
that his conduct was in the corporations best interests, and in all other
cases, that his conduct was at least not opposed to the best interests of the
corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful.
Under Texas law, a corporations articles of incorporation may
eliminate all monetary liability of each director to the corporation or its
shareholders for conduct in the performance of a directors duties other than
some conduct specifically excluded from protection. Texas law does not permit any limitation of
liability of a director for:
·
breaching the duty of
loyalty to the corporation or its shareholders;
·
an act or omission not
in good faith that constitutes a breach of duty of the director to the
corporation or an act or omission that involves intentional misconduct or a
knowing violation of law;
·
a transaction from
which the director received an improper benefit, whether or not the benefit
resulted from an action taken within the scope of the directors office; or
·
an act or omission for
which the liability of a director is expressly provided by an applicable
statute.
Our articles of incorporation, as amended, include provisions that
eliminate the personal liability of our directors for monetary damages
resulting from breaches of their fiduciary duty to the maximum extent provided
by law.
The foregoing is only a general summary of certain aspects of the Texas
Business Corporation Act and our articles of incorporation and by-laws dealing
with indemnification of directors and officers, and does not purport to be
complete. It is qualified in its
entirety by reference to the Texas Business Corporation Act, our articles of
incorporation and our by-laws.
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Item 16.
Exhibits
.
The following exhibits have previously been filed by the registrant or
are included in this report following the Index to Exhibits:
3.1*
Articles of Incorporation of International Bancshares Corporation
incorporated herein as an exhibit by reference to the Current Report, Exhibit 3.1
therein, filed by registrant on Form 8-K with the Commission on June 20,
1995, Commission File No. 09439.
3.2*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation dated May 22, 1998 incorporated herein by reference
to Exhibit 3(c) of the registrants Annual Report on Form 10-K
filed with the Commission on March 31, 1999, Commission file No. 09439.
3.3*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation dated May 21, 2002 incorporated herein by reference
to Exhibit 3(d) of the registrants Annual Report on form 10-K filed
with the Commission on March 12, 2004, Commission File No. 09439.
3.4*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation filed with the Secretary of State of the State of Texas
on May 17, 2005, incorporated herein as an exhibit by reference to the
Current Report, Exhibit 3.1 therein, filed by registrant on Form 8-K
with the Commission on May 20, 2005, Commission File No. 09439.
3.5*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation filed with the Secretary of State of the State of Texas
on December 22, 2008, incorporated herein as an exhibit by reference to
the Current Report, Exhibit 3.1 therein, filed by registrant on Form 8-K
with the Commission on December 23, 2008, Commission File No. 09439.
3.6*
Certificate of Designations for 216,000 shares of Fixed Rate Cumulative
Perpetual Preferred Stock, Series A, of International Bancshares
Corporation, filed with the Secretary of State of the State of Texas on December 22,
2008, incorporated herein as an exhibit by reference to the Current Report, Exhibit 3.2
therein, filed by registrant on Form 8-K with the Commission on December 23,
2008, Commission File No. 09439.
3.7*
Amended and Restated By-Laws of International Bancshares Corporation,
incorporated herein as an exhibit by reference to the Current Report, Exhibit 3.3
therein, filed by registrant on Form 8-K with the Commission on December 23,
2008, Commission File No. 09439.
4.2* Letter Agreement, dated as of December 23,
2008, and the securities Purchase Agreement - Standard Terms, which the Letter
Agreement incorporates by reference, between International Bancshares
Corporation and the United States Department of the Treasury, incorporated
herein as an exhibit by reference to the Current Report, Exhibit 10.1
therein, filed by registrant on Form 8-K with the Commission on December 23,
2008, Commission File No. 09439.
4.3* Warrant, dated December 23, 2008,
to purchase shares of common stock of International Bancshares Corporation,
incorporated herein as an exhibit by reference to the Current Report, Exhibit 4.1
therein, filed by registrant on Form 8-K with the Commission on December 23,
2008, Commission File No. 09439.
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4.4* Form of Certificate for the Fixed
Rate Cumulative Perpetual Preferred Stock, Series A, par value $0.01 per
share incorporated herein as an exhibit by reference to the Current Report, Exhibit 4.2
therein, filed by registrant on Form 8-K with the Commission on December 23,
2008, Commission File No. 09439.
5.1 Opinion of Cox Smith Matthews
Incorporated
12.1
Schedule showing calculation of ratios of earnings to fixed charges
23.1
Consent of Cox Smith Matthews Incorporated (included in Exhibit 5.1
filed herewith)
23.2
Consent of McGladrey & Pullen, LLP
23.3
Consent of KPMG, LLP
24.1
Powers of Attorney (included in the signature pages to the
Registration Statement)
*Previously Filed
Item 17.
Undertakings
.
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 this 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
this registration statement. Notwithstanding the foregoing, any increase or
decrease in the 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 this registration statement or any material change to such information in
this registration statement;
provided, however, that paragraphs (1)(i),
(1)(ii) and (1)(iii) do not apply if the information required to be
included in a post-effective 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 this
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registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of this
registration statement.
(2) That, for the purposes of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at the 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:
(i) if the registrant is relying on Rule 430B,
each prospectus filed by a 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 that prospectus relates, 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.
(iii) if the registrant is subject to Rule 430C,
each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness. 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 first use, supersede or modify any statement
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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 date of first use.
(5) That, for the purpose of determining
liability of a 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.
The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plans annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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.
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 indemnification provisions described herein, 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 of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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The undersigned registrant hereby undertakes that:
(i) For purposes of determining any
liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
(ii) For the purpose of determining any
liability under the Securities act of 1933, each post-effective amendment that
contains a form of prospectus 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Laredo, Texas, on January 22, 2009.
|
INTERNATIONAL BANCSHARES CORPORATION
|
|
(Registrant)
|
|
|
|
By:
|
|
/s/ Dennis E. Nixon
|
|
|
Dennis E. Nixon, President
|
|
|
and Chief Executive Officer
|
Each of the undersigned hereby constitutes and
appoints Dennis E. Nixon and Imelda Navarro, with full power to each
of them to act without the other, the undersigneds true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the undersigned and in the undersigneds name, place and stead, in any and
all capacities (until revoked in writing), to sign this Registration Statement
on Form S-3 and any and all amendments (including post-effective
amendments) thereto, to file the same, together with all exhibits thereto and
documents in connection therewith, with the Commission, to sign any and all
applications, registration statements, notices and other documents necessary or
advisable to comply with the applicable state securities authorities, granting
unto said attorney-in-fact and agent, or his, her or their substitute or
substitutes, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises in order to
effectuate the same as fully to all intents and purposes as the undersigned
might or could do if personally present, thereby ratifying and confirming all
that said attorneys-in-fact and agents, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
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/s/ Dennis E. Nixon
|
|
President and Director
|
|
January 22, 2009
|
Dennis E. Nixon
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/ Imelda Navarro
|
|
Treasurer
|
|
January 22, 2009
|
Imelda Navarro
|
|
(Principal Financial Officer and
|
|
|
|
|
Principal Accounting Officer)
|
|
|
|
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|
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/s/ Irving Greenblum
|
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Director
|
|
January 22, 2009
|
Irving Greenblum
|
|
|
|
|
|
|
|
|
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/s/ R. David Guerra
|
|
Director
|
|
January 22, 2009
|
R. David Guerra
|
|
|
|
|
|
|
|
|
|
/s/ Daniel B. Hastings, Jr.
|
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Director
|
|
January 22, 2009
|
Daniel B. Hastings, Jr.
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|
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/s/ Richard E. Haynes
|
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Director
|
|
January 22, 2009
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Richard E. Haynes
|
|
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/s/ Sioma Neiman
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Director
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January 22, 2009
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Sioma Neiman
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/s/ Peggy J. Newman
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Director
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January 22, 2009
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Peggy J. Newman
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/s/ Leonardo Salinas
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Director
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January 22, 2009
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Leonardo Salinas
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/s/ Antonio R.
Sanchez, Jr.
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Director
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January 22, 2009
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Antonio R. Sanchez, Jr.
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Table of Contents
Exhibit Index
3.1*
Articles of Incorporation of International Bancshares Corporation
incorporated herein as an exhibit by reference to the Current Report, Exhibit 3.1
therein, filed by registrant on Form 8-K with the Commission on June 20,
1995, Commission File No. 09439.
3.2*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation dated May 22, 1998 incorporated herein by reference
to Exhibit 3(c) of the registrants Annual Report on Form 10-K
filed with the Commission on March 31, 1999, Commission file No. 09439.
3.3*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation dated May 21, 2002 incorporated herein by reference
to Exhibit 3(d) of the registrants Annual Report on form 10-K filed
with the Commission on March 12, 2004, Commission File No. 09439.
3.4*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation filed with the Secretary of State of the State of Texas
on May 17, 2005, incorporated herein as an exhibit by reference to the
Current Report, Exhibit 3.1 therein, filed by registrant on Form 8-K
with the Commission on May 20, 2005, Commission File No. 09439.
3.5*
Articles of Amendment to the Articles of Incorporation of International
Bancshares Corporation filed with the Secretary of State of the State of Texas
on December 22, 2008, incorporated herein as an exhibit by reference to
the Current Report, Exhibit 3.1 therein, filed by registrant on Form 8-K
with the Commission on December 23, 2008, Commission File No. 09439.
3.6*
Certificate of Designations for 216,000 shares of Fixed Rate Cumulative
Perpetual Preferred Stock, Series A, of International Bancshares
Corporation, filed with the Secretary of State of the State of Texas on December 22,
2008, incorporated herein as an exhibit by reference to the Current Report, Exhibit 3.2
therein, filed by registrant on Form 8-K with the Commission on December 23,
2008, Commission File No. 09439.
3.7*
Amended and Restated By-Laws of International Bancshares Corporation,
incorporated herein as an exhibit by reference to the Current Report, Exhibit 3.3
therein, filed by registrant on Form 8-K with the Commission on December 23,
2008, Commission File No. 09439.
4.2* Letter
Agreement, dated as of December 23, 2008, and the securities Purchase
Agreement - Standard Terms, which the Letter Agreement incorporates by
reference, between International Bancshares Corporation and the United States
Department of the Treasury, incorporated herein as an exhibit by reference to
the Current Report, Exhibit 10.1 therein, filed by registrant on Form 8-K
with the Commission on December 23, 2008, Commission File No. 09439.
4.3* Warrant,
dated December 23, 2008, to purchase shares of common stock of
International Bancshares Corporation, incorporated herein as an exhibit by
reference to the Current Report, Exhibit 4.1 therein, filed by registrant
on Form 8-K with the Commission on December 23, 2008, Commission File
No. 09439.
Table
of Contents
4.4* Form of
Certificate for the Fixed Rate Cumulative Perpetual Preferred Stock, Series A,
par value $0.01 per share incorporated herein as an exhibit by reference to the
Current Report, Exhibit 4.2 therein, filed by registrant on Form 8-K
with the Commission on December 23, 2008, Commission File No. 09439.
Exhibit 5.1
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Opinion of
Cox Smith Matthews Incorporated
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Exhibit 12.1
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Schedule
showing calculation of ratios of earnings to fixed charges
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Exhibit 23.1
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Consent of
Cox Smith Matthews Incorporated (included in Exhibit 5.1 filed herewith)
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Exhibit 23.2 -
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Consent of McGladrey & Pullen, LLP
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Exhibit 23.3 -
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Consent of KPMG, LLP
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Exhibit 24.1 -
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Powers of Attorney (included in the signature pages to the
Registration Statement)
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*Previously filed
International Bancshares (NASDAQ:IBOC)
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International Bancshares (NASDAQ:IBOC)
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