-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Qw3yp6G5zbw4froCmpI2EFjxVzx1Ti9QG3OfnB2iHmkgKV5/goIQlOFNDSwc1biI H/A43dQw87/xRYG1f8bXJw== /in/edgar/work/20000725/0000931763-00-001757/0000931763-00-001757.txt : 20000921 0000931763-00-001757.hdr.sgml : 20000921 ACCESSION NUMBER: 0000931763-00-001757 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000725 EFFECTIVENESS DATE: 20000725 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL COMMERCE BANCORPORATION CENTRAL INDEX KEY: 0000101844 STANDARD INDUSTRIAL CLASSIFICATION: [6021 ] IRS NUMBER: 620784645 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-42214 FILM NUMBER: 678686 BUSINESS ADDRESS: STREET 1: ONE COMMERCE SQ CITY: MEMPHIS STATE: TN ZIP: 38150 BUSINESS PHONE: 9015233242 MAIL ADDRESS: STREET 1: ONE COMMERCE SQ CITY: MEMPHIS STATE: TN ZIP: 38150 FORMER COMPANY: FORMER CONFORMED NAME: UNITED TENNESSEE BANCSHARES CORP DATE OF NAME CHANGE: 19780820 FORMER COMPANY: FORMER CONFORMED NAME: UNITED TENNESSEE BANSHARES CORP DATE OF NAME CHANGE: 19780525 S-8 1 0001.txt NATIONAL COMMERCE BANCORP As Filed With the Securities and Exchange Commission on July 25, 2000 Registration No. 333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 - -------------------------------------------------------------------------------- NATIONAL COMMERCE BANCORPORATION (Exact name of registrant as specified in its charter) TENNESSEE 62-0784645 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) National Commerce Bancorporation One Commerce Square 38150 Memphis, Tennessee (Zip Code) (Address of Principal Executive Offices) Hillsborough Savings Bank, Inc., SSB Management Recognition Plan Piedmont Bancorp, Inc. Stock Option Plan (Full titles of the plans) Charles A. Neale, Esq. Vice President and General Counsel National Commerce Bancorporation One Commerce Square Memphis, Tennessee 38150 (Name and address of agent for service) (901) 523-3371 (Telephone number, including area code, of agent for service) Copy to: John A. Good, Esq. Bass, Berry & Sims PLC 100 Peabody Place, Suite 950 Memphis, TN 38103 CALCULATION OF REGISTRATION FEE
Proposed maximum Title of securities offering price per Proposed maximum aggregate Amount of to be registered Amount to be registered share* offering price* registration fee ==================================================================================================================================== Common Stock, par value $2.00 per share 171,000 shares $17.72 $3,030,120 $799.95
* The offering price is estimated solely for the purpose of determining the amount of the registration fee. Such estimate has been calculated in accordance with Rule 457(c) and Rule 457(h) and is based upon the average of the high and low prices per share of the Registrant's common stock as reported on the National Market of the Nasdaq Stock Market on July 20, 2000. EXPLANATORY NOTE Pursuant to the Agreement and Plan of Reorganization dated as of December 27, 1999 between National Commerce Bancorporation (the "Registrant") and Piedmont Bancorp, Inc. ("PBI"), PBI merged with and into the Registrant on April 11, 2000 (the "Effective Date"), and the Registrant continues as the surviving corporation. As a result of the merger, each share of common stock, no par value, of PBI issuable pursuant to the Hillsborough Savings Bank, Inc., SSB Management Recognition Plan or the Piedmont Bancorp, Inc. Stock Option Plan (the "Plans") immediately prior to the effective time of the merger was converted into the right to receive a certain number of shares of the Registrant's common stock, $2.00 par value per share (the "Common Stock"), at the effective time of the merger, and the Registrant assumed all outstanding obligations to issue PBI common stock under the Plans. The Registrant hereby files this Registration Statement on Form S-8 relating to 171,000 shares of Common Stock issuable pursuant to the Plans. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by the Registrant with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference as of their respective dates: a. The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1999; b. All other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 1999; and c. The description of the Common Stock contained in the effective registration statement filed by the Registrant to register such securities under the Exchange Act, including all amendments and reports filed for the purpose of updating such description prior to the termination of the offering of the Common Stock offered hereby. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded. Item 4. Description of Securities. Not applicable. II-1 Item 5. Interests of Named Experts and Counsel. An opinion as to the legality of the securities being registered is being provided by Bass, Berry & Sims PLC. Attorneys at Bass, Berry & Sims PLC working on this Registration Statement owned approximately 14,686 shares of the Common Stock as of the date of this Registration Statement. Item 6. Indemnification of Directors and Officers. The Registrant is a Tennessee corporation. Sections 48-18-501 through 48- 18-509 of the Tennessee Business Corporation Act contain detailed provisions on indemnification of directors and officers of a Tennessee corporation. The Registrant's restated charter provides that no director of the Registrant shall be personally liable to the Registrant or its shareholders for monetary damages for breach of fiduciary duty as a director, except: (i) for any breach of the director's duty of loyalty to the Registrant or its shareholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or (iii) for unlawful distributions under Section 48-18-304 of the Tennessee Business Corporation Act. The Registrant's bylaws provide that the Registrant shall indemnify any person who is made a party to a suit by or in the right of the Registrant to procure a judgment in its favor by reason of the fact that he, his testator or intestate is or was a director or officer of the Registrant, against amounts paid in settlement and reasonable expenses including attorneys' fees actually and necessarily incurred as a result of such suit or proceeding or any appeal therein, to the extent permitted by and in the manner provided by the laws of Tennessee. The Registrant shall indemnify any person made or threatened to be made a party to a suit or proceeding other than by or in the right of any company of any type or kind, domestic or foreign, which any director or officer of the Registrant, by reason of the fact that he, his testator or intestate, was a director or officer of the Registrant or served such other company in any capacity, against judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred as a result of such suit or proceeding, or any appeal therein, if such director or officer acted in good faith for a purpose which he reasonably believed to be in the best interest of the Registrant and, in criminal actions or proceedings, had no reasonable cause to believe that this conduct was unlawful, to the extent permitted by, and in the manner provided by, the laws of Tennessee. The directors and officers of the Registrant are covered by an insurance policy indemnifying them against certain civil liabilities, including liabilities under the federal securities laws, which might be incurred by them in such capacity. Item 7. Exemption From Registration Claimed. Not applicable. Item 8. Exhibits. See the Index to Exhibits (page II-7) and Item 9 below. Item 9. Undertakings. A. The 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, as amended (the "Securities Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) to include any material information with respect to the plan of distribution not previously II-2 disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that clauses (i) and (ii) of this paragraph do not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (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. B. The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Memphis, State of Tennessee, on this 20th day of July, 2000. NATIONAL COMMERCE BANCORPORATION By: /s/ Thomas M. Garrott --------------------- Thomas M. Garrott Chairman of the Board KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Kathryn L. Shelton and K. Elizabeth Whitehead, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents 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, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, 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, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated:
Signature Title Date - --------- ----- ---- /s/ Thomas M. Garrott Chairman of the Board July 20, 2000 - -------------------------------------- and Director Thomas M. Garrott /s/ Ernest C. Roessler President and Chief Executive July 20, 2000 - -------------------------------------- Officer (Principal Executive Ernest C. Roessler Officer) and Director /s/ Sheldon M. Fox Chief Financial Officer (Principal July 20, 2000 - -------------------------------------- Financial Officer) Sheldon M. Fox /s/ Mark A. Wendel Accounting Officer (Principal July 20, 2000 - -------------------------------------- Accounting Officer) Mark A. Wendel Director - -------------------------------------- James B. Brame, Jr.
II-4 /s/ Bruce E. Campbell, Jr. Director July 20, 2000 - -------------------------------------- Bruce E. Campbell, Jr. /s/ John D. Canale, III Director July 20, 2000 - -------------------------------------- John D. Canale, III /s/ Thomas C. Farnsworth, Jr. Director July 20, 2000 - -------------------------------------- Thomas C. Farnsworth, Jr. /s/ Blake P. Garrett, Jr. Director July 20, 2000 - -------------------------------------- Blake P. Garrett, Jr. Director - -------------------------------------- R. Lee Jenkins Director - -------------------------------------- C. Dan Joyner /s/ W. Neely Mallory, Jr. Director July 20, 2000 - -------------------------------------- W. Neely Mallory, Jr. /s/ Eugene J. McDonald Director July 20, 2000 - -------------------------------------- Eugene J. McDonald /s/ James E. McGehee, Jr. Director July 20, 2000 - -------------------------------------- James E. McGehee, Jr. Director - -------------------------------------- Phillip H. McNeill, Sr. /s/ George J. Morrow Director July 20, 2000 - -------------------------------------- George J. Morrow Director - -------------------------------------- Eric B. Munson /s/ Harry J. Phillips, Sr. Director July 20, 2000 - -------------------------------------- Harry J. Phillips, Sr. /s/ J. Bradbury Reed Director July 20, 2000 - -------------------------------------- J. Bradbury Reed Director - -------------------------------------- David E. Shi
II-5 Director - -------------------------------------- H. Allen Tate, Jr. Director - -------------------------------------- Phail Wynn, Jr.
II-6 INDEX TO EXHIBITS Exhibit Number Description - ---------------- ------------------------------------------------------------ 4.1 Amended and Restated Charter of National Commerce Bancorporation (filed as Exhibit 3.1 to the Registrant's Form 8-K filed on July 11, 2000 (File No. 0-6094) and incorporated herein by reference) 4.2 Bylaws of National Commerce Bancorporation, as amended (filed as Exhibit 3.2 to the Registrant's Form 10-K for the year ended December 31, 1995 (File No. 0-6094) and incorporated herein by reference) 4.3 Hillsborough Savings Bank, Inc., SSB Management Recognition Plan (incorporated by reference to Exhibit 10.II.B of PBI's Form 10-K for the fiscal year ended June 30, 1996 (filed September 24, 1996)) 4.4 Piedmont Bancorp, Inc. Stock Option Plan (incorporated by reference to Exhibit 10.II.A to PBI's Form 10-K for the fiscal year ended June 30, 1996 (filed September 24, 1996)) 5 Opinion of Bass, Berry & Sims PLC 23.1 Consent of Ernst & Young LLP 23.2 Consent of Bass, Berry & Sims PLC (contained in Exhibit 5) 24 Power of Attorney (included at pages II-4, II-5 and II-6) II-7 EX-5 2 0002.txt OPINION OF BASS BERRY & SIMS PLC EXHIBIT 5 [LETTERHEAD OF BASS, BERRY & SIMS PLC] July 21, 2000 The Board of Directors of National Commerce Bancorporation One Commerce Square Memphis, TN 38150 RE: Registration Statement on Form S-8 Relating to the Hillsborough Savings Bank, Inc., SSB Management Recognition Plan and the Piedmont Bancorp, Inc. Stock Option Plan Ladies and Gentlemen: We have acted as counsel to National Commerce Bancorporation, a Tennessee corporation ("NCBC"), in connection with the preparation and filing of the Registration Statement on Form S-8 (the "Registration Statement") relating to 171,000 shares of common stock, par value $2.00 per share, of NCBC (the "Common Stock") to be issued pursuant to the above referenced plans (the "Plans"). In our capacity as such counsel, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records of NCBC, such agreements and instruments, such certificates of public officials, officers of NCBC and other persons, and such other documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity and completeness of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies, and the authenticity of the originals of such copies, and we have assumed all certificates of public officials to have been properly given and to be accurate. As to factual matters relevant to this opinion letter, we have relied upon the representations and warranties as to factual matters contained in certificates and statements of officers of NCBC and certain public officials. Except to the extent expressly set forth herein, we have made no independent investigations with regard thereto, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent verification. National Commerce Bancorporation July 21, 2000 Page 2 On the basis of the foregoing, and subject to the limitations set forth herein, we are of the opinion that the shares of Common Stock issuable in connection with the Plans have been duly authorized and, when issued in accordance with the terms of the Plans, will be validly issued, fully paid and nonassessable. We consent to the filing of this opinion letter as an exhibit to the Registration Statement and to any related registration statement subsequently filed by NCBC pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended (the "Act"), and to the use of our name under the heading "Legal Opinions" in any prospectus constituting a part thereof. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. This opinion letter is being furnished by us to NCBC and the Commission solely for the benefit of NCBC and the Commission in connection with the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon by any other person, or by NCBC or the Commission for any other purpose, without our express written consent. The only opinion rendered by us consists of those matters set forth in the fourth paragraph hereof, and no opinion may be implied or inferred beyond those expressly stated. This opinion letter is rendered as of the date hereof, and we have no obligation to update this opinion letter. Sincerely, BASS, BERRY & SIMS PLC EX-23.1 3 0003.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-_____) pertaining to the Hillsborough Savings Bank, Inc., SSB Management Recognition Plan and the Piedmont Bancorp, Inc. Stock Option Plan, of our report dated January 27, 2000, with respect to the consolidated financial statements of National Commerce Bancorporation incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Memphis, Tennessee July 21, 2000 -----END PRIVACY-ENHANCED MESSAGE-----