-----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, QBGpHL9YJNNGm05K0O28TZqH6YSWbQn9p1EKBYcT2jclEOhOH5F2n+c2xvkS04XQ luETUiJDyAjGLYTBjJBKLg== 0000931763-01-502597.txt : 20020413 0000931763-01-502597.hdr.sgml : 20020413 ACCESSION NUMBER: 0000931763-01-502597 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20011228 EFFECTIVENESS DATE: 20011228 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONAL COMMERCE FINANCIAL CORP CENTRAL INDEX KEY: 0000101844 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 620784645 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: 1933 Act SEC FILE NUMBER: 333-69338 FILM NUMBER: 1825545 BUSINESS ADDRESS: STREET 1: ONE COMMERCE SQ CITY: MEMPHIS STATE: TN ZIP: 38150 BUSINESS PHONE: 9014156416 MAIL ADDRESS: STREET 1: ONE COMMERCE SQ CITY: MEMPHIS STATE: TN ZIP: 38150 FORMER COMPANY: FORMER CONFORMED NAME: NATIONAL COMMERCE BANCORPORATION DATE OF NAME CHANGE: 19950822 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 POS 1 ds8pos.txt POST-EFFECTIVE AMENDMENT NO.1 ON FORM S-8 As Filed With the Securities and Exchange Commission on December 28, 2001 Registration No. 333-69338 ................................................................................ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ................................................................................ NATIONAL COMMERCE FINANCIAL CORPORATION (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 Financial Corporation One Commerce Square 38150 Memphis, Tennessee (Zip Code) (Address of Principal Executive Offices) Perpetual Bank, A Federal Savings Bank 1997 Stock Option Plan SouthBanc Shares, Inc. 1998 Stock Option Plan SouthBanc Shares, Inc. 2001 Stock Option Plan (Full titles of the plans) Charles A. Neale, Esq. Vice President and General Counsel National Commerce Financial Corporation 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 This Post-Effective Amendment No. 1 on Form S-8 to Registration Statement on Form S-4 covers shares (the "Shares") of common stock, $2.00 par value per share (the "Common Stock"), of National Commerce Financial Corporation, formerly known as National Commerce Bancorporation (the "Registrant"), that may be issued by the Registrant under the plans listed above (the "Plans"). The Plans were assumed by the Registrant as a result of the merger on November 19, 2001 of SouthBanc Shares, Inc. ("SouthBanc") with the Registrant. The Registrant originally registered the Shares pursuant to its Registration Statement on Form S-4 filed on September 13, 2001 (File No. 333-69338). The Registrant paid the registration fee at the time of filing of the Form S-4 Registration Statement. 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/A for the fiscal year ended December 31, 2000, as amended and restated; b. All other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2000; 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. 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 12,190 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. II-2 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, and 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 following the signature pages hereof. 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 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 hereof. (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 II-3 filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 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-4 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 Post-Effective Amendment No. 1 on Form S-8 to Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Memphis, State of Tennessee, on this 28th day of December, 2001. NATIONAL COMMERCE FINANCIAL CORPORATION By: /s/ Ernest C. Roessler ------------------------------------------------ President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment No. 1 on Form S-8 to Registration Statement on Form S-4 has been signed by the following persons in the capacities and on the dates indicated:
Signature Title Date - --------- ----- ---- * Chairman of the Board December 28, 2001 - -------------------------------------------- Thomas M. Garrott and Director * President and Chief Executive Officer December 28, 2001 - -------------------------------------------- Ernest C. Roessler (Principal Executive Officer) and Director * Chief Financial Officer (Principal December 28, 2001 - -------------------------------------------- Financial Officer) Sheldon M. Fox * Accounting Officer (Principal December 28, 2001 - -------------------------------------------- Mark A. Wendel Accounting Officer) * Director December 28, 2001 - -------------------------------------------- James B. Brame, Jr. ____________________________________________ Director December ___, 2001 Bruce E. Campbell, Jr.
* Director December 28, 2001 - -------------------------------------------- John D. Canale, III Director December __, 2001 - -------------------------------------------- James H. Daughdrill, Jr. Director December __, 2001 - -------------------------------------------- Thomas C. Farnsworth, Jr. * Director December 28, 2001 - -------------------------------------------- Blake P. Garrett, Jr. * Director December 28, 2001 - -------------------------------------------- R. Lee Jenkins * Director December 28, 2001 - -------------------------------------------- C. Dan Joyner * Director December 28, 2001 - -------------------------------------------- W. Neely Mallory, Jr. Director December __, 2001 - -------------------------------------------- Eugene J. McDonald Director December __, 2001 - -------------------------------------------- James E. McGehee, Jr.
* Director December 28, 2001 - -------------------------------------------- Phillip H. McNeill, Sr. * Director December 28, 2001 - -------------------------------------------- Eric B. Munson Director December __, 2001 - -------------------------------------------- J. Bradbury Reed * Director December 28, 2001 - -------------------------------------------- David E. Shi * Director December 28, 2001 - -------------------------------------------- H. Allen Tate, Jr. * Director December 28, 2001 - -------------------------------------------- Phail Wynn, Jr. *By:/s/ K. Elizabeth Whitehead December 28, 2001 ---------------------------------------- Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit Number Description - -------------------- --------------------------------------------------------------------- 4.1 Articles of Amendment to the Amended and Restated Charter of National Commerce Bancorporation (filed as Exhibit 3.1 to the Registrant's Form S-3 filed on July 9, 2001 (File No. 0-6094) and incorporated herein by reference) 4.2 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) 4.3 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) 4.4 Perpetual Bank, A Federal Savings Bank 1997 Stock Option Plan (incorporated by reference to Exhibit 4.3 to SouthBanc's Registration Statement No. 333-79869 on Form S-8) 4.5 SouthBanc Shares, Inc. 1998 Stock Option Plan (incorporated by reference to Exhibit A to SouthBanc's Proxy Statement filed December 23, 1998 (File No. 000-23751)) 4.6 SouthBanc Shares, Inc. 2001 Stock Option Plan (incorporated by reference to Appendix A to SouthBanc's Proxy Statement filed on December 14, 2000 (File No. 000-23751)) 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)
EX-5 3 dex5.txt OPINION OF BASS, BERRY & SIMS PLC EXHIBIT 5 [LETTERHEAD OF BASS, BERRY & SIMS PLC] December 28, 2001 The Board of Directors of National Commerce Financial Corporation One Commerce Square Memphis, TN 38150 RE: Registration Statement on Form S-8 Relating to the Employee Benefit Plans Listed on Exhibit A hereto Ladies and Gentlemen: We have acted as counsel to National Commerce Financial Corporation, a Tennessee corporation ("NCF"), in connection with the preparation and filing of Post-Effective Amendment No. 1 on Form S-8 to the Registration Statement on Form S-4 (the "Registration Statement") relating to certain shares of common stock, par value $2.00 per share, of NCF (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 NCF, such agreements and instruments, such certificates of public officials, officers of NCF 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 NCF 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. 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 National Commerce Financial Corporation December 28, 2001 Page 2 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 NCF 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 NCF and the Commission solely for the benefit of NCF 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 NCF 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, /s/ BASS, BERRY & SIMS PLC National Commerce Financial Corporation December 28, 2001 Page 3 EXHIBIT A --------- Perpetual Bank, A Federal Savings Bank 1997 Stock Option Plan SouthBanc Shares, Inc. 1998 Stock Option Plan SouthBanc Shares, Inc. 2001 Stock Option Plan EX-23.1 4 dex231.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. 333-69338) pertaining to the Perpetual Bank, A Federal Savings Bank 1997 Stock Option Plan, the SouthBanc Shares, Inc. 1998 Stock Option Plan, and the SouthBanc Shares, Inc. 2001 Stock Option Plan, of our report dated June 22, 2001, with respect to the consolidated financial statements of National Commerce Financial Corporation included in its Annual Report (Form 10-K/A) for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Memphis, Tennessee December 26, 2001 -----END PRIVACY-ENHANCED MESSAGE-----