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EXHIBIT 4.5
NATIONAL COMMERCE CAPITAL TRUST I
$50,000,000 FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES(SM) (TRUPS(SM))
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
NATIONAL COMMERCE BANCORPORATION
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 27, 1997
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven World Trade Center
New York, New York 10048
Dear Sirs:
National Commerce Capital Trust I (the "Trust"), a statutory
business trust formed under the laws of the state of Delaware by National
Commerce Bancorporation (the "Company"), proposes to issue and sell to the
Initial Purchasers (the "Initial Purchasers") named in the Purchase Agreement
of even date herewith (the "Purchase Agreement"), for whom you are acting as
representative (the "Representative"), the Floating Rate Capital Trust
Pass-through Securities (the "Capital Securities") of the Trust. The issuance
and sale of the Capital Securities pursuant to the Purchase Agreement is
referred to herein as the "Initial Placement." The Capital Securities,
together with the guarantee of the Company with respect thereto (the
"Guarantee") and the Floating Rate Junior Subordinated Deferrable Interest
Debentures due 2027 of the Company (the "Subordinated Debt Securities"), are
collectively referred to herein as the "Registrable Securities." As an
inducement to the Initial Purchasers to enter into the Purchase Agreement and
in satisfaction of a condition to the obligations of the Initial Purchasers
thereunder, the Company and the Trust agree with you, (i) for your benefit and
the benefit of the other Initial Purchasers and (ii) for the benefit of the
holders from time to time of the Registrable Securities and the Exchange
Securities (as defined below), including the Initial Purchasers (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
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"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Capital Securities" has the meaning set forth in the preamble
hereto.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means the Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Prospectus" means the Prospectus contained in
the Exchange Offer Registration Statement, as it may be amended or supplemented
from time to time.
"Exchange Offer Registration Period" means the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement, or the Company
otherwise fails to maintain continuous effectiveness of the Exchange Offer
Registration Statement.
"Exchange Offer Registration Statement" means a registration
statement of the Company and the Trust on an appropriate form under the
Securities Act with respect to the Registered Exchange Offer, all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Securities" means the securities of the Company and
the Trust issued pursuant to a Registered Exchange Offer in the same aggregate
principal amount or in the same number or liquidation amount, as the case may
be, and containing terms that are identical in all material respects to the
terms of the Registrable Securities except (i) the Exchange Securities shall
have been registered for sale under the Securities Act to Holders and (ii) the
interest rate step-up provisions and the transfer restrictions under the
Securities Act in the Registrable Securities will be modified or eliminated, as
appropriate, in the Exchange Securities.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchasers) which is a broker-dealer electing to exchange Registrable
Securities, acquired for its own account as a result of market-making
activities or other trading activities, for
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Exchange Securities.
"Final Offering Memorandum" means the final Offering
Memorandum issued in connection with the Initial Placement and dated as of
March 20, 1997 relating to the Registrable Securities.
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchasers" has the meaning set forth in the preamble
hereto.
"Interest Payment Date" has the meaning set forth in Section
3(c) hereof.
"Letter of Transmittal" has the meaning set forth in Section
2(c)(i) hereof.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities or the Exchange
Securities, covered by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the offer to the Holders to
issue and deliver to such Holders, in exchange for the Registrable Securities,
a like principal amount, stated liquidation amount or number, as the case may
be, of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the
preamble hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Representative" has the meaning set forth in the preamble
hereto.
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"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company and the Trust pursuant to the provisions of Section 3
hereof which covers some or all of the Registrable Securities or Exchange
Securities, as applicable, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Special Payment" has the meaning set forth in Section 3(c)
hereof.
"Subordinated Debt Securities" has the meaning set forth in
the preamble hereto.
"Trust" has the meaning set forth in the preamble hereto.
"underwriter" means any underwriter of Registrable Securities
or Exchange Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities
by Exchanging Dealers; Private Exchange. (a) Except as otherwise provided
herein, the Company and the Trust shall prepare and, not later than 150 days
following the Closing Date, shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company and the Trust shall use their best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act within
180 days of the Closing Date. The Company and the Trust shall use their best
efforts to consummate the Registered Exchange Offer within 210 days of the
Closing Date.
(b) Upon the date the Exchange Offer Registration Statement
is declared effective, the Company and the Trust shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an affiliate of the
Company within the meaning of the Securities Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in a public distribution (within
the meaning of the Securities Act) of the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions under
the securities laws of a substantial proportion of the several states of the
United States.
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(c) In connection with the Registered Exchange Offer, the
Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal (the
"Letter of Transmittal") and related documents;
(ii) keep the Registered Exchange Offer open for not
less than 30 days (or longer if required by applicable law)
after the date notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York; and
(iv) comply in all material respects with all
applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable
Securities tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) issue Exchange Securities to each Holder in a
principal amount, stated liquidation amount or number, as the
case may be, equal to the Registrable Securities accepted for
exchange and canceled pursuant to the Registered Exchange
Offer; and
(iii) issue Exchange Securities to each Initial
Purchaser at its request in exchange for Registrable
Securities acquired by it as part of the Initial Placement
containing terms that are identical to the Exchange Securities
issued to Holders in the Registered Exchange Offer (except
that such Exchange Securities may contain the transfer
restrictions contained in the Registrable Securities for which
they are exchanged) and use reasonable best effort to cause
the CUSIP Service Bureau to issue the same CUSIP number for
such Exchange Securities as is issued for the Exchange
Securities issued in the Registered Exchange Offer.
(e) The Company, the Trust and the Initial Purchasers on
behalf of the Holders hereby acknowledge that, in order to effect a Registered
Exchange Offer and to comply with clause (d)(iii) above, (i) the Company will
be required to issue new subordinated debt securities to the Trust in exchange
for a like principal amount of Subordinated Debt Securities and (ii) the Trust
will be required to issue new capital securities in exchange for a like amount
of stated liquidation amount of Capital Securities. The parties hereto
acknowledge that the Guarantee by its express terms covers the Exchange
Securities corresponding to the
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Capital Securities as well as such Capital Securities. The parties hereto
further acknowledge that the new subordinated debt securities, capital
securities and guarantee issuable as described in this paragraph, which
collectively constitute the Exchange Securities, shall be identical in all
material respects to the securities they replace, except that (x) such Exchange
Securities issued pursuant to the Exchange Offer shall be registered for sale
under the Securities Act to Holders and (y) the interest rate step-up
provisions and the transfer restrictions under the Securities Act in the
securities being replaced by the Exchange Securities will be modified and
eliminated, as appropriate, in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust
acknowledge that, pursuant to current interpretations by the staff of the
Commission of Section 5 of the Securities Act, and in the absence of an
applicable exemption therefrom, each Exchanging Dealer may be deemed an
"underwriter" within the meaning of the Securities Act and, therefore, is
required to deliver a Prospectus in connection with any resales of any Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Registrable Securities acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Company and the Trust shall:
(i) include the information set forth in (A) Annex A
hereto, on the cover of the Prospectus forming a part of the
Exchange Offer Registration Statement, (B) Annex B hereto, in
the forepart of the Prospectus forming a part of the Exchange
Offer Registration Statement in a section setting forth
details of the Exchange Offer, (C) Annex C hereto, in the
underwriting or plan of distribution section of the Prospectus
forming a part of the Exchange Offer Registration Statement,
and such other information with respect to resales of the
Exchange Securities by Exchanging Dealers that the Commission
may require in connection therewith, and (D) Annex D hereto,
in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange
Offer Registration Statement continuously effective under the
Securities Act during the Exchange Offer Registration Period
for delivery by Exchanging Dealers in connection with sales of
Exchange Securities received pursuant to the Registered
Exchange Offer, as contemplated by Section 4(i) hereof.
3. Shelf Registration. (i) If, because of any change in law
or applicable interpretations thereof by the staff of the Commission, the
Company and the Trust determine upon the advice of their outside counsel that
they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof, (ii) if for any other reason the Exchange Offer
Registration Statement is not declared effective by the Commission within 180
days of the Closing Date, (iii) if any Initial Purchaser so requests with
respect to Registrable Securities held by it following consummation of the
Registered Exchange Offer that are not "freely tradable" Exchange Securities,
(iv) if the Company has received an opinion of counsel, rendered by a law firm
having a nationally recognized tax practice, to the effect that there is a more
than insubstantial risk that consummation of the Registered Exchange Offer
would (x)
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subject the Trust to United States federal income tax with respect to income
received or accrued on the Subordinated Debt Securities or the Exchange
Securities to be issued in exchange therefor or (y) result in interest payable
by the Company on such Subordinated Debt Securities or the Exchange Securities
to be issued in exchange therefor not being deductible by the Company, in whole
or in part, for United States federal income tax purposes, or (v) if any Holder
that is a broker-dealer, is not an affiliate of the Company or the Trust and is
not eligible to participate in the Registered Exchange Offer so requests with
respect to Registrable Securities held by it following the consummation of the
Registered Exchange Offer that are not "freely tradable" Exchange Securities
(it being understood that, for purposes of this Section 3, (x) the requirement
that an Initial Purchaser deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the Securities Act in
connection with sales of Exchange Securities acquired in exchange for such
Registrable Securities shall result in such Exchange Securities being not
"freely tradable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Registrable Securities acquired as a
result of market-making activities or other trading activities shall not result
in such Exchange Securities being not "freely tradable"), the following
provisions shall apply:
(a) The Company and the Trust shall, as promptly as
practicable, file with the Commission the Shelf Registration Statement covering
resales of the Registrable Securities or the Exchange Securities, as
applicable, by the Holders from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf Registration
Statement, and use their best efforts to cause the Shelf Registration Statement
to be declared effective under the Securities Act by the 210th day after the
Closing Date (or promptly in the event of a request by an Initial Purchaser);
provided that with respect to Exchange Securities received by an Initial
Purchaser in exchange for Registrable Securities constituting any portion of an
unsold allotment, the Company and the Trust may, if permitted by current
interpretations by the Commission's staff, file a post-effective amendment to
the Exchange Offer Registration Statement containing the information required
by Regulation S-K Items 507 and/or 508, as applicable, in satisfaction of their
obligations under this paragraph (a) with respect thereto, and any such
Exchange Offer Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a Shelf
Registration Statement; and provided further, that with respect to a Shelf
Registration Statement required pursuant to clause (ii) of the preceding
paragraph, the consummation of a Registered Exchange Offer shall relieve the
Company and the Trust of their obligations under this Section 3(a) but only in
respect of their obligations under such clause (ii).
(b) The Company and the Trust shall each use its best efforts
to keep the Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by Holders for a period
of three years from the date the Shelf Registration Statement is declared
effective by the Commission, or such shorter period that will terminate upon
the earlier of the following: (A) when all the Registrable Securities or
Exchange Securities, as applicable, covered by such Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement, (B) when
all the Subordinated Debt
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Securities or the Exchange Securities relating to such Subordinated Debt
Securities or the Exchange Securities relating to such Subordinated Debt
Securities issued to Holders in respect of Capital Securities or Exchange
Securities that had not been sold pursuant to the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement, or (C) when in the
written opinion of counsel to the Company and the Trust, all outstanding
Registrable Securities or Exchange Securities held by persons that are not
affiliates of the Company or the Trust may be resold without registration under
the Securities Act pursuant to Rule 144(k) under the Securities Act or any
successor provision. Furthermore, the Company and the Trust shall each use its
reasonable best efforts, upon the effectiveness of the Shelf Registration
Statement and promptly upon the request of any Holder, to take any action
reasonably necessary to register the sale of any Registrable Securities or
Exchange Securities of such Holder and compliance by such Holder with the terms
hereof and to identify such Holder as a selling securityholder, provided that
such Holder provides the Company with all information reasonably necessary to
effect such registration. The Company and the Trust shall be deemed not to
have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if either the Company or the
Trust voluntarily takes any action that would result in Holders of securities
covered thereby not being able to offer and sell such securities during that
period, unless (i) such action is required by applicable law, or (ii) such
action is taken by the Company in good faith and for valid business reasons
(not including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of Section 4(l) hereof, if
applicable.
(c) Except as described below, in the event that either (a)
the Exchange Offer Registration Statement is not filed with the Commission on
or prior to the 150th day following the Closing Date, (b) the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th day
following the Closing Date or (c) the Exchange Offer is not consummated or a
Shelf Registration Statement with respect to the Registrable Securities is not
declared effective on or prior to the 210th day following the Closing Date,
interest will accrue (in addition to the stated interest on the Registrable
Securities) from and including the next day following each of (i) such 150-day
period in the case of clause (a) above, (ii) such 180-day period in the case of
clause (b) above, and (iii) such 210-day period in the case of clause (c)
above. In each case such additional interest (the "Special Payment") will be
payable in cash semiannually in arrears on the first day of January, April,
July and October (each an "Interest Payment Date"), at a rate per annum equal
to 0.25% of the principal amount or liquidation amount, as applicable, of the
Registrable Securities. The aggregate amount of Special Payment payable
pursuant to the above provisions will in no event exceed 0.25% per annum of the
principal amount or the liquidation amount, as applicable, of the Registrable
Securities.
(d) Upon (x) the filing of the Exchange Offer Registration
Statement, as described above, after the 150-day period described in clause (a)
of the preceding paragraph, (y) the effectiveness of the Exchange Offer
Registration Statement, as described above, after the 180-day period described
in clause (b) of the preceding paragraph, or (z) the consummation of the
Exchange Offer or the effectiveness of a Shelf Registration Statement
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after the 210-day period described in clause (c) of the preceding paragraph,
the Special Payment payable on the Registrable Securities from the date of such
filing, effectiveness or consummation, as the case may be, will cease to accrue
and all accrued and unpaid Special Payment as of the occurrence of (x), (y) or
(z) shall be paid to the holders of the Registrable Securities on the next
Interest Payment Date.
(e) In the event that a Shelf Registration Statement is
declared effective hereunder, if the Company or the Trust fails to keep such
Shelf Registration Statement continuously effective for the period required
hereby, then from the next day following such time as the Shelf Registration
Statement is no longer effective until the earlier of (i) the date that the
Shelf Registration Statement is again deemed effective, (ii) the date that is
the third anniversary of the date of the original issuance of the Registrable
Securities or (iii) the date as of which all of the Registrable Securities
covered by the Shelf Registration Statement are sold pursuant thereto or may be
sold without registration pursuant to Rule 144 under the Securities Act,
Special Payment shall accrue at a rate per annum equal to 0.25% of the
principal amount or liquidation amount, as applicable, of the Registrable
Securities and shall be payable in cash, in arrears on each Interest Payment
Date; it being understood that after the Registered Exchange Offer has been
consummated, no Special Payment shall accrue in respect of Registrable
Securities, without prejudice to any other claim that any Holder may have for
any failure by the Company to obtain or maintain continuous effectiveness of
the Exchange Offer Registration Statement or a Shelf Registration Statement in
accordance with the terms of this Agreement.
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and the Trust shall furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein and shall use their
reasonable best efforts to reflect in each such document, when so filed with
the Commission, such comments as the Initial Purchasers reasonably may propose.
(b) The Company and the Trust shall ensure that (i) any
Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any amendment or supplement thereto (and each document
incorporated therein by reference) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and regulations
thereunder, (ii) any Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus forming
part of any Registration Statement, and any amendment or supplement to such
Prospectus, does not as of the date thereof include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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(c) (1) The Company and the Trust shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, if requested by the Initial Purchasers or any
such Holder, confirm such advice in writing:
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company and the Trust shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders of
securities covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested by the
Initial Purchasers or any such Holder or Exchanging Dealer, confirm such advice
in writing of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or overtly threatening of
any proceeding for such purpose;
(iii) the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes
have been made); and
(iv) the Company's or the Trust's determination that
a post-effective amendment to a Registration Statement would
be appropriate.
(d) The Company and the Trust shall use their reasonable best
efforts to prevent the issuance, and if issued to obtain the withdrawal, of any
order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(e) On or prior to the time that an Exchange Offer
Registration Statement or
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Shelf Registration Statement is first effective under the Securities Act, the
Company may, in its discretion, cause the Capital Securities or Exchange
Securities corresponding to such Capital Securities, respectively, to be duly
authorized for listing, subject in the case of an Exchange Offer Registration
Statement to official notice of issuance, on the New York Stock Exchange as a
fixed income security (or, if such listing is unavailable, as an equity
security) and thereafter shall maintain such listing; or, in the alternative,
the Company may, in its discretion, cause the Capital Securities or Exchange
Securities corresponding to such Capital Securities, respectively, to be freely
tradable to the same extent as if duly authorized for listing on the New York
Stock Exchange as described above.
(f) The Company and the Trust shall furnish to each Holder of
securities included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits filed therewith
(including those incorporated by reference).
(g) The Company and the Trust shall, during the Shelf
Registration Period, deliver to each Holder of securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company and the Trust each consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of securities in connection with the offering and sale of the
securities covered by the Prospectus or any amendment or supplement thereto.
(h) The Company and the Trust shall furnish to each
Exchanging Dealer that so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing, all
exhibits filed therewith (including those incorporated by reference).
(i) The Company and the Trust shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the final Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer; and the Company and the Trust each consent to the
use of the Prospectus or any amendment or supplement thereto by any such
Exchanging Dealer, as aforesaid.
(j) Prior to the Registered Exchange Offer or any other
offering of securities pursuant to any Registration Statement, the Company and
the Trust shall register or qualify or cooperate with the Holders of securities
included therein and their respective counsel in connection with the
registration or qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in
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writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the securities covered by
such Registration Statement; provided, however, that in no event shall the
Company or the Trust be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which
would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject.
(k) The Company and the Trust shall cooperate with the
Holders of Registrable Securities or Exchange Securities, as the case may be,
to facilitate the timely preparation and delivery within the times required by
normal-way settlement of certificates representing securities to be sold
pursuant to any Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may reasonably
request prior to sales of securities pursuant to such Registration Statement.
(l) If (i) Shelf Registration is filed pursuant to Section 3
hereof, or (ii) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Exchanging Dealer who seeks to sell Registrable
Securities or Exchange Securities during the Shelf Registration Period or the
Exchange Offer Registration Period, as the case may be, upon the occurrence of
any event contemplated by paragraph 4(c)(2)(iii) or 4(c)(2)(iv) hereof, the
Company and the Trust shall, as promptly as practicable, prepare and file with
the Commission, at the sole expense of the Company, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder or to the purchasers of the Exchange Securities to whom such
Prospectus will be delivered by an Exchanging Dealer, any such Prospectus will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(m) Not later than the effective date of any such
Registration Statement hereunder, the Company and the Trust shall provide a
CUSIP number for the Capital Securities or the Exchange Securities
corresponding to the Capital Securities, as the case may be, registered under
such Registration Statement. In the event of and at the time of any
distribution of the Subordinated Debt Securities to Holders, the Company and
the Trust shall provide a CUSIP number for the Subordinated Debt Securities or
the Exchange Securities corresponding to the Subordinated Debt Securities and
provide the applicable trustee with certificates for such securities, in a form
eligible for deposit with DTC. The Company and the Trust shall use their
reasonable best efforts to cause the CUSIP Service Bureau to issue the same
CUSIP number for all Exchange Securities or Registrable Securities, as the case
may be, delivered pursuant to a Registration Statement as was originally issued
for the Registrable Securities.
(n) The Company and the Trust shall use their best efforts to
comply with all applicable rules and regulations of the Commission to the
extent and so long as they are
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applicable to the Registered Exchange Offer, the Exchange Offer Registration
Statement or the Shelf Registration Statement and shall make generally
available to their security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act.
(o) The Company and the Trust shall cause the indenture
relating to the Subordinated Debt Securities, the Capital Securities Guarantee
and the declaration of trust of the Trust pursuant to which the terms of the
Capital Securities are established, or any corresponding documents in respect
of the Exchange Securities, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
(p) The Company and the Trust shall, if requested, use their
reasonable best efforts promptly to incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement, such information as
the Managing Underwriters reasonably agree should be included therein and shall
make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after they are notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Company and the Trust shall enter into such agreements (including an
underwriting agreement) and take all other appropriate actions, if any, in
order to facilitate the registration or the disposition of the Registrable
Securities or the Exchange Securities, as the case may be, to be registered
thereunder.
(r) In connection therewith, if an underwriting agreement is
entered into, the Company and the Trust shall cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 hereof (or such other provisions and procedures acceptable
to the Managing Underwriters, if any), with respect to all parties to be
indemnified pursuant to Section 6 hereof.
(s) In the case of any underwritten offering under a Shelf
Registration Statement or at the request of an Initial Purchaser to the extent
that an Initial Purchaser has Registrable Securities or Exchange Securities
eligible for resale thereunder, the Company and the Trust shall (i) make
reasonably available for inspection by a representative of the Holders of a
majority of the securities to be registered thereunder, any Initial Purchaser
(if applicable) and any underwriter participating in any disposition pursuant
to such Registration Statement, and any attorney, accountant or other agent
retained by any such Holders, Initial Purchaser or underwriter all relevant
financial and other records, pertinent corporate documents and properties of
the Company, its subsidiaries and the Trust; (ii) cause the Company's officers,
directors and employees and the trustees of the Trust to supply all relevant
information reasonably requested by the representative of the Holders, the
Initial Purchaser (if applicable) or any such underwriter, attorney, accountant
or agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information
that is designated in writing by the Company and the Trust, in good faith, as
confidential at the time of delivery of such information shall be kept
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confidential by the Holders, the Initial Purchaser (if applicable) or any such
underwriter, attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without an
accompanying obligation of confidentiality; (iii) make such representations and
warranties to the Holders of securities registered thereunder, the Initial
Purchaser (if applicable) and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not limited to,
those set forth in the Purchase Agreement; (iv) obtain opinions of counsel to
the Company and the Trust (who may be the general counsel of the Company) and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters, if any) in
customary form and scope addressed to each selling Holder, Initial Purchaser
(if applicable) and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings and such
other matters as may reasonably requested by such Holders, Initial Purchasers
(if applicable) and underwriters; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company (and
if necessary, any other independent certified accountants of any subsidiary of
the Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of securities
registered thereunder, the Initial Purchaser (if applicable) and the
underwriters, if any, and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably requested by
any such Holders, the Initial Purchaser (if applicable) or the Managing
Underwriters, if any, including those to evidence compliance with Section 4(l)
hereof and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company and the Trust. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(s) shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto and (B) each closing under
any underwriting or similar agreement as and to the extent required thereunder.
5. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm of counsel designated by the majority of the Holders of the
Registrable Securities or Exchange Securities, as the case may be, covered by
such Shelf Registration Statement to act as counsel for the Holders in
connection therewith.
6. Indemnification and Contribution. (a) In connection with
any Registration Statement, the Company agrees to indemnify and hold harmless
the Trust, each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(i) hereof, each Exchanging Dealer), the directors, officers,
employees and agents of each such Holder and each person who controls any such
Holder within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of
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them may become subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (including
all documents incorporated by referenced therein) as originally filed or in any
amendment thereof, or in any preliminary prospectus or Prospectus, or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any such Holder specifically for inclusion
therein; and provided, further, that the Company will not be liable under the
provisions of this Section 6 with respect to the Prospectus to the extent that
any such loss, claim, damage or liability results from the fact that the
indemnified party sold securities covered by the Registration Statement to a
person to whom there was not sent or given, within the time required by the
Securities Act, a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished such amendments or supplements thereto to the
indemnified party in accordance with the provisions of Section 4 hereof) if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses,
as provided in Section 6(d) hereof, of any underwriters of Securities
registered under a Shelf Registration Statement, their officers and directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Initial Purchasers and the selling
Holders provided in this Section 6(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in
Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(i) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Company, the Trust, each of
their directors, trustees, administrators, officers and each person who
controls the Company or the Trust within the meaning of either the Securities
Act or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of
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notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve the indemnifying party from liability under paragraph (a) or (b) above
unless and to the extent the indemnifying party did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of one such separate counsel (in addition to local
counsel) designated by the indemnified parties if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any
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Registrable Security or Exchange Security be responsible, in the aggregate, for
any amount in excess of the purchase discount or commission applicable to such
security, or in the case of an Exchange Security, applicable to the Registrable
Security which was exchangeable into such Exchange Security, as set forth on
the cover page of the Final Offering Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
to the sum of (x) the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Offering
Memorandum and (y) the total amount of additional interest which the Company
was not required to pay as a result of registering the securities covered by
the Registration Statement which resulted in such Losses. Benefits received by
the Initial Purchasers shall be deemed to be equal to the total purchase
discounts and commissions as set forth on the cover page of the Final Offering
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Registrable Securities or Exchange Securities,
as applicable, registered under the Securities Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement which resulted in such Losses. Relative fault shall
be determined by reference to whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
and the Trust within the meaning of either the Securities Act or the Exchange
Act, each officer of the Company or trustee of the Trust who shall have signed
the Registration Statement and each director of the Company or trustee of the
Trust shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder, the Company or the Trust or any of the officers, directors or
controlling persons referred to in this Section 6, and will survive the sale by
a Holder of securities covered by a Registration Statement.
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7. Miscellaneous. (a) No Inconsistent Agreements. The
Company and the Trust have not, as of the date hereof, entered into, nor shall
they, on or after the date hereof, enter into, any agreement with respect to
their securities that is inconsistent with the rights granted to the Holders
herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company and the Trust have
obtained the written consent of the Holders of at least a majority in
liquidation amount of the Capital Securities then outstanding (or, after the
consummation of any Exchange Offer in accordance with Section 2 hereof, of
Exchange Securities then outstanding); provided that, with respect to any
matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Company shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the
foregoing proviso), a waiver or consent to departure from the provisions hereof
with respect to a matter that relates exclusively to the rights of Holders
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may be given
by the majority of such affected Holders, determined on the basis of
securities being sold rather than registered under such Registration Statement.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the most current address
given by such Holder to the Company;
(ii) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at
their addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received. The Initial Purchasers, the Company or the
Trust by notice to the others may designate additional or different addresses
for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent
by the Company or the Trust thereto, subsequent Holders of Registrable
Securities and/or Exchange Securities. The Company and the Trust hereby agree
to extend the benefits of this Agreement to any Holder of Registrable
Securities and/or Exchange Securities and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
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(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances,
is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified number, or percentage of
principal amount or liquidation amount, as the case may be, of Registrable
Securities or Exchange Securities is required hereunder, Registrable Securities
or Exchange Securities, as applicable, held by the Company or its Affiliates
(other than subsequent Holders of Registrable Securities or Exchange Securities
if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Registrable Securities or Exchange Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
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Please confirm your agreement by having your authorized
officer sign a copy of this Registration Agreement in the space set forth below
and returning the signed copy to us.
Very truly yours,
NATIONAL COMMERCE BANCORPORATION
By:
-----------------------------------
Name:
Title:
NATIONAL COMMERCE CAPITAL TRUST I
By: NATIONAL COMMERCE
BANCORPORATION,
as Sponsor
By:
-----------------------------------
Name:
Title:
Accepted:
SALOMON BROTHERS INC
By:
-----------------------------------
Name:
Title:
Date: March ___, 1997
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ANNEX A
Based on interpretations by the staff of the Securities and
Exchange Commission (the "Commission"), as set forth in no-action letters
issued to third parties, the Company and the Trust believe that the Exchange
Securities issued pursuant to the Registered Exchange Offer may be offered for
resale, resold or otherwise transferred by holders thereof (other than any
holder that is an "affiliate" of the Company or the Trust as defined under Rule
405 of the Securities Act), provided that such Exchange Securities are acquired
in the ordinary course of such holders' business and such holders are not
engaged in, and do not intend to engage in, a distribution of such Exchange
Securities and have no arrangement or understanding with any person to
participate in the distribution of such Exchange Securities. However, the
staff of the Commission has not considered the Registered Exchange Offer in the
context of a no-action letter, and there can be no assurance that the staff of
the Commission would make a similar determination with respect to the
Registered Exchange Offer as in such other circumstances. By tendering the
Registrable Securities in exchange for Exchange Securities, each holder, other
than a broker-dealer, will represent to the Company and the Trust that: (i) it
is not an affiliate of the Company or the Trust (as defined under Rule 405 of
the Securities Act); (ii) any Exchange Securities to be received by it were
acquired in the course of its ordinary business; and (iii) it is not engaged
in, and does not intend to engage in, a distribution of the Exchange Securities
and has no arrangement or understanding to participate in a distribution of the
Exchange Securities.
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Registrable Securities where such Registrable Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company and the Trust have agreed that, starting on
the date on which the Registered Exchange Offer is consummated and ending on
the close of business one year after such date, they will make this Prospectus
available to any broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
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ANNEX B
Based on interpretations by the staff of the Commission as set
forth in no-action letters issued to third parties, the Company and the Trust
believe that holders of Registrable Securities (other than any holder that is
an "affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Registrable Securities for Exchange
Securities pursuant to the Registered Exchange Offer may offer such Exchange
Securities for resale, resell such Exchange Securities and otherwise transfer
such Exchange Securities without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
Exchange Securities are acquired in the ordinary course of such holders'
business and such holders are not engaged in, and do not intend to engage in, a
distribution of such Exchange Securities and have no arrangement or
understanding with any person to participate in the distribution of such
Exchange Securities. However, the staff of the Commission has not considered
the Registered Exchange Offer in the context of a no-action letter, and there
can be no assurance that the staff of the Commission would make a similar
determination with respect to the Registered Exchange Offer. Each
broker-dealer that receives Exchange Securities for its own account in exchange
for Registrable Securities, where such Registrable Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Registrable Securities where such
Registrable Securities were acquired as a result of market-making activities or
other trading activities. The Company and the Trust have agreed that, starting
on the date on which the Registered Exchange Offer is consummated and ending on
the close of business one year after such date, they will make this Prospectus,
as amended or supplemented, available to any broker-dealer for use in
connection with any such resale. In addition, until ___________, 199__, all
dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.
The Company and the Trust will not receive any proceeds from
any sale of Exchange Securities by broker-dealers. Exchange Securities
received by broker-dealers for their own account pursuant to the Registered
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market or the New York Stock Exchange, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Registered Exchange
Offer and any broker or dealer that participates in a distribution of such
Exchange Securities may be deemed to be an "underwriter" within the meaning of
the Securities Act and any profit on any such resale of Exchange Securities and
any commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of one year after the date on which the
Registered Exchange Offer is consummated, the Company and the Trust will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company and the Trust have agreed to pay all
expenses incident to the Registered Exchange Offer (including the expenses of
one counsel for the Holders of the Registrable Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Registrable Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
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[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
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ANNEX D
Rider A
_ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
---------------------------------------
Address:
---------------------------------------
---------------------------------------
Rider B
The undersigned acknowledges that this Registered Exchange
Offer is being made by the Company and the Trust based upon the Company's and
Trust's understanding of an interpretation by the staff of the Securities and
Exchange Commission (the "Commission") as set forth in no-action letters issued
to third parties, that the Exchange Securities issued in exchange for
Registrable Securities by holders thereof (other than to holders that are
"affiliates" of the Company or the Trust within the meaning of Rule 405 under
the Securities Act), may be so issued without compliance with the registration
and prospectus delivery provisions of the Securities Act, provided that: (i)
such holders are not affiliates of the Company or the Trust within the meaning
of Rule 405 under the Securities Act; (ii) such Exchange Securities are
acquired in the ordinary course of such holders' business; and (iii) such
holders are not engaged in, and do not intend to engage in, a distribution of
such Exchange Securities and have no arrangement or understanding with any
person to participate in the distribution of such Exchange Securities.
However, the staff of the Commission has not considered the Registered Exchange
Offer in the context of a no-action letter and there can be no assurance that
the staff of the Commission would make a similar determination with respect to
the Registered Exchange Offer as in other circumstances. If a holder of
Registrable Securities is an affiliate of the Company, or is engaged in or
intends to engage in a distribution of the Exchange Securities or has any
arrangement or understanding with respect to the distribution of the Exchange
Securities to be acquired pursuant to the Registered Exchange Offer, such
holder could not rely on the applicable interpretations of the staff of the
Commission and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any secondary resale
transaction. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable Securities, it
represents that the Registrable Securities to be exchanged for Exchange
Securities were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
25
