EXHIBIT 3
AFFILIATE AGREEMENT
(Date)
National Commerce Bancorporation
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Vice Chairman
Dear Xx. Xxxx:
The undersigned is a shareholder of Piedmont Bancorp, Inc.
("PBI"), a corporation organized and existing under the laws of the State of
North Carolina, and will become a shareholder of National Commerce
Bancorporation ("NCBC") pursuant to the transactions described in the Agreement
and Plan of Reorganization, dated as of December 27, 1999, (the "Agreement"), by
and between NCBC and PBI. Under the terms of the Agreement, PBI will be merged
with and into NCBC (the "Merger"), and the shares of the no par value common
stock of PBI ("PBI Common Stock") will be converted into and exchanged for
shares of the $2.00 par value common stock of NCBC ("NCBC Common Stock"). This
Affiliate Agreement represents an agreement between the undersigned and NCBC
regarding rights and obligations of the undersigned in connection with the
shares of NCBC to be received by the undersigned as a result of the Merger.
In consideration of the Merger and the mutual covenants
contained herein, the undersigned and NCBC hereby agree as follows:
1. Affiliate Status. The undersigned understands and agrees
that the undersigned is an "affiliate" under Rule 145(c) as defined in Rule 405
of the Rules and Regulations of the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended ("1933 Act"), and the undersigned
anticipates that the undersigned will be such an "affiliate" at the time of the
Merger.
2. Initial Restriction on Disposition. The undersigned agrees
that the undersigned will not sell, transfer, or otherwise dispose of the
undersigned's interests in or reduce the undersigned's risk relative to, any of
the shares of NCBC Common Stock into which the undersigned's shares of PBI
Common Stock are converted upon consummation of the Merger until such time as
the requirements of SEC Accounting Series Release Nos. 130 and 135 ("ASR 130 and
135") have been met. The undersigned understands that ASR 130 and 135 relate to
publication of financial results of post-Merger combined operations of NCBC and
PBI. NCBC agrees that it will publish such results within 45 days after the end
of the first fiscal quarter of NCBC containing the required period of
post-Merger combined operations.
3. Covenants and Warranties of Undersigned. The undersigned
represents, warrants, and agrees that:
(a) During the 30 days immediately preceding the Effective
Time of the Merger, the undersigned has not sold, transferred, or otherwise
disposed of the undersigned's interests in, or reduced the undersigned's risk
relative to, any of the shares of PBI Common Stock beneficially owned by the
undersigned as of the date of the Shareholder's Meeting of PBI held to approve
the Merger.
(b) The NCBC Common Stock received by the undersigned as a
result of the Merger will be taken for the undersigned's own account and not for
others, directly or indirectly, in whole or part.
(c) NCBC has informed the undersigned that any distribution by
the undersigned of NCBC Common Stock has not been registered under the 1933 Act
and that shares of NCBC Common Stock received pursuant to the Merger can only be
sold by the undersigned (1) following registration under the 1933 Act, or (2) in
conformity with the volume and other requirements of Rule 145(d) promulgated by
the SEC as the same now exists or may hereafter be amended, or (3) to the extent
some other exemption from registration under the 1933 Act might be available.
The undersigned understands that NCBC is under no obligation to file a
registration statement with the SEC covering the disposition of the
undersigned's shares of NCBC Common Stock or to take any other action necessary
to make compliance with an exemption from such registration available.
(d) The undersigned will, and will cause each of the other
parties whose shares are deemed to be beneficially owned by the undersigned
pursuant to Section 8 hereof to have all shares of PBI Common Stock beneficially
owned by the undersigned registered in the name of the undersigned or such
parties, as applicable, prior to the Effective Date of the Merger and not in the
name of any banker, broker-dealer, nominee, or clearinghouse.
(e) The undersigned is aware that NCBC intends to treat the
Merger as a tax-free reorganization under Section 368 of the Internal Revenue
Code ("Code") for federal income tax purposes. The undersigned agrees to treat
the transaction in the same manner as NCBC for federal income tax purposes. The
undersigned acknowledged that Section 1.368-1(b) of the Income Tax Regulations
requires "continuity of interest" in order for the Merger to be treated as
tax-free under Section 368 of the Code. This requirement is satisfied if, taking
into account those PBI shareholders who receive cash in lieu of fractional
shares, there is not a plan, or intention on the part of the PBI shareholders to
sell or otherwise dispose of the NCBC Common Stock to be received in the Merger.
The undersigned has no prearrangement, plan or intention to sell or otherwise
dispose of an amount of his NCBC Common Stock to be received in the Merger which
would cause the foregoing requirement not to be satisfied.
4. Restrictions on Transfer. The undersigned understands and
agrees that stop order instructions with respect to the shares of NCBC Common
Stock received by the undersigned pursuant to the Merger will be given to NCBC's
Transfer Agent and that there will be placed on the certificates of such shares,
or shares issued in substitution thereof, a legend stating in substance:
"The shares represented by this certificate were issued
pursuant to a business combination which is accounted for as a
"pooling of interests" and may not be sold, nor may the owner
thereof reduce his risks relative thereto in any way, until
such time as National Commerce Bancorporation ("NCBC") has
published the financial results covering at least 30 days of
combined operations after the effective date of the merger
through which the business combination was effected. In
addition, the shares represented by this certificate may not
be sold, transferred, or otherwise disposed of except or
unless (1) covered by an effective registration statement
under the Securities Act of 1933, as amended, (2) in
accordance with (i)Rule 145(d) (in the case of shares issued
to an individual who is not an affiliate of NCBC) or (ii) Rule
144 (in the case of shares issued to an individual who is an
affiliate of NCBC) of the Rules and Regulations of such Act,
or (3) in accordance with a legal opinion satisfactory to
counsel for NCBC that such sale or offer is otherwise exempt
from the registration requirements of such Act."
Such legend will also be placed on any certificate
representing NCBC securities issued subsequent to the original issuance of the
NCBC Common Stock pursuant to the Merger as a result of any transfer of such
shares or any stock dividend , stock split, or other recapitalization as long as
the NCBC Common Stock issued to the undersigned pursuant to the Merger has not
been transferred in such a manner to justify the removal of the legend
therefrom. Upon the request of the undersigned, NCBC shall cause the
certificates representing the shares of NCBC Common Stock issued to the
undersigned in connection with the Merger to be reissued free of any legend
relating to restrictions on transfer by virtue of ASR 130 and 135 as soon as
practicable after the requirements of ASR 130 and 135 have been met. In
addition, if the provisions of Rules 144 and 145 are amended to delete
restrictions applicable to the NCBC Common Stock received by the undersigned
pursuant to the Merger, or upon the expiration of the restrictive period set
forth in Rule 145(d), NCBC, upon the request of the undersigned, will cause the
certificates representing the shares of NCBC Common Stock issued to the
undersigned in connection with the Merger to be reissued free of any legend
relating to the restrictions set forth in Rules 144 and 145 (d) upon receipt by
NCBC of an opinion of its counsel to the effect that such legend may be removed.
5. Understanding of Restrictions on Dispositions. The
undersigned has carefully read the Agreement and this Affiliate Agreement and
discussed their requirements and impact upon his ability to sell, transfer, or
otherwise dispose of the shares of NCBC Common Stock received by the
undersigned, to the extent he believes necessary, with his counsel or counsel or
PBI.
6. Filing of Reports by NCBC. NCBC agrees, for a period of
three years after the Effective Time of the Merger, to file on a timely basis
all reports required to be filed by it pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, so that the public information provision of
Rule 145(d) promulgated by the SEC as the same are presently in effect will be
available to the undersigned in the event the undersigned desires to transfer
any shares of NCBC Common Stock issued to the undersigned pursuant to the
Merger.
7. Transfer Under Rule 145(d). If the undersigned desires to
sell or otherwise transfer the shares of NCBC Common Stock received by him in
connection with the Merger at any time during the restrictive period set forth
in Rule 145(d), the undersigned will provide the necessary representation letter
to the transfer agent for NCBC Common Stock together with such additional
information as the transfer agent may reasonably request. If NCBC's counsel
concludes that such proposed sale or transfer complies with the requirements of
Rule 145(d), NCBC shall cause such counsel to provide such opinions as may be
necessary to NCBC's transfer agent so that the undersigned may complete the
proposed sale or transfer.
8. Acknowledgments. The undersigned recognizes and agrees that
the foregoing provisions also apply to all shares of the capital stock of PBI
and NCBC that are deemed to be beneficially owned by the undersigned pursuant to
applicable federal securities laws, which the undersigned agrees may include
without limitation, shares owned or held in the name of (i) the undersigned's
spouse, (ii) any relative of the undersigned or of the undersigned's spouse who
has the same home as the undersigned, (iii) any trust or estate in which the
undersigned, the undersigned's spouse, and any such relative collectively own at
least 10% of any class of equity securities or of the equity interest. The
undersigned further recognizes that, in the event that the undersigned is a
director or officer of NCBC or becomes a director or officer of NCBC upon
consummation of the Merger, among other things, any sale of NCBC Common Stock by
the undersigned within a period of less that six months following the Effective
Time of the Merger may subject the undersigned to liability pursuant to Section
16(b) of the Securities Exchange Act of 1934, as amended.
9. Miscellaneous. This Affiliate Agreement is the complete
agreement between NCBC and the undersigned concerning the subject matter hereof.
Any notice required to be sent to any party hereunder shall be sent by
registered or certified mail, return receipt requested, using the addresses set
forth here in or such other address as shall be furnished in writing by the
parties.
10. Governing Law. This Affiliate Agreement shall be governed
by and construed in accordance with the laws of the State of Tennessee.
This Affiliate Agreement is executed as of the ______ day of
_____________, 2000.
By: _________________
Address:
_____________________
_____________________
_____________________
[Add below the signatures of all registered owners of shares deemed beneficially
owned by the Affiliate.]
Name:
_____________________
Name:
_____________________
Name:
_____________________
AGREED TO AND ACCEPTED as of this ________ day of _______________, 2000.
NATIONAL COMMERCE BANCORPORATION
By: _______________
Xxxxxxx X. Xxxx
Vice Chairman
