EXHIBIT 1.1
[ ] Trust Preferred Securities
NATIONAL COMMERCE CAPITAL TRUST II
(a Delaware statutory business trust)
[ ]% Trust Preferred Securities
(Liquidation Amount of $25 per Trust Preferred Security)
Underwriting Agreement
December , 2001
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
As Representatives of the
Several Underwriters Listed
in Schedule I
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
National Commerce Capital Trust II, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), and National Commerce
Financial Corporation, a Tennessee corporation (the "Company"), propose to issue
and sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of [ ] of [ ]% trust preferred
securities (liquidation amount of $25 per trust preferred security) of the Trust
(the "Preferred Securities"), representing preferred undivided beneficial
interests in the assets of the Trust.
The proceeds of the sale of the Preferred Securities to the public and of
common securities of the Trust (the "Common Securities") to the Company
concurrently with the sale of the Preferred Securities are to be invested by the
Trust in $[ ] aggregate principal amount of [ ]% junior subordinated
deferrable interest debentures due [ ] (the "Subordinated Debentures"), to
be issued by the Company pursuant to the Indenture dated as of [ ], 2001
(the "Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"). The principal asset of the Trust will consist of the
Subordinated Debentures. The Preferred Securities may be exchangeable into
Subordinated Debentures as described in the Prospectus (as defined below). The
Company will guarantee payments of amounts due under the Preferred Securities
(the
"Guarantee") to the extent set forth in the Guarantee Agreement dated as of [ ],
2001, between the Company and The Bank of New York, as guarantee trustee (the
"Guarantee Trustee"). The Preferred Securities and the Common Securities will be
issued pursuant to the Amended and Restated Trust Agreement dated as of [ ],
2001 (the "Trust Agreement"), among the Company, as depositor, The Bank of New
York, as property trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware trustee (the "Delaware Trustee"), the administrative
trustees named therein (the "Administrative Trustees") and the Holders (as
defined therein). For all purposes of this Agreement the Trust shall be
considered a "subsidiary" of the Company.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to (i) the Preferred Securities,
(ii) the Guarantee and (iii) the Subordinated Debentures. The registration
statement as amended at the time when it shall become effective, or, if a post-
effective amendment is filed with respect thereto, as amended by such post-
effective amendment at the time of its effectiveness, including in each case
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is referred to
in this Agreement as the "Registration Statement", and the prospectus in the
form first used to confirm sales of Preferred Securities is referred to in this
Agreement as the "Prospectus". If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
The Trust and the Company, jointly and severally, each hereby agrees with
the Underwriters as follows:
1. The Trust agrees to issue and sell the Preferred Securities to the
several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Trust the respective number of Preferred Securities set forth opposite
such Underwriter's name in Schedule I hereto at a price equal to 100% of their
principal amount plus accrued distributions, if any, from ___________, 2001 to
the date of payment and delivery.
2. The Trust and the Company understand that the Underwriters intend (i)
to make a public offering of their respective portions of the Preferred
Securities as soon after (A) the Registration Statement has become effective and
(B) the parties hereto have executed and delivered this Agreement, as in the
judgment of the Representatives is advisable and (ii) initially to offer the
Preferred Securities upon the terms set forth in the Prospectus.
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3. Payment for the Preferred Securities shall be made by wire transfer in
immediately available funds to the account specified by the Trust to the
Representatives on [ ], 2001, or at such other time on the same or such other
date, not later than the fifth Business Day thereafter, as the Representatives,
the Trust and the Company may agree upon in writing. The time and date of such
payment is referred to herein as the "Closing Date". As used herein, the term
"Business Day" means any day other than a day on which banks are permitted or
required to be closed in New York City.
Payment for the Preferred Securities shall be made against delivery to
the nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of one or more global securities (collectively, the "Global
Preferred Security") representing the Preferred Securities, with any transfer
taxes payable in connection with the transfer to the Underwriters of the
Preferred Securities duly paid by the Company. The Global Preferred Security
will be made available for inspection by the Representatives at the office of
X.X. Xxxxxx Securities Inc. at the address set forth above not later than 1:00
P.M., New York City time, on the Business Day prior to the Closing Date.
As compensation to the Underwriters for their commitments hereunder, and in
consideration of the fact that the proceeds of the sale of the Preferred
Securities will be used by the Trust to purchase the Subordinated Debentures of
the Company, the Company hereby agrees to pay to X.X. Xxxxxx Securities Inc.,
for the accounts of the several Underwriters, an amount equal to $[ ] per
Preferred Security to be delivered by the Trust hereunder on the Closing Date.
On [ ], 2001, or on such other date, no later than the fifth Business Day
thereafter, as the Representatives, the Trust and the Company may agree upon in
writing, the Company will pay or cause to be paid, by wire transfer, in
immediately available funds, such commission to the account specified by X.X.
Xxxxxx Securities Inc.
4. The Trust and the Company, jointly and severally, each represents and
warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and did 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; provided that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Trust or the Company in writing by such
Underwriter through the Representatives expressly for use therein;
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(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Trust or the Company, threatened by
the Commission; and the Registration Statement and Prospectus (as amended
or supplemented if the Trust or the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the case may
be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act") and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus
and any amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, if applicable, at the Closing Date
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part
of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act, and (ii) statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Trust or the
Company in writing by such Underwriter through the Representatives
expressly for use therein;
(c) the historical financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus present fairly
the financial position of the Company and its consolidated subsidiaries or
CCB Financial Corporation and its consolidated subsidiaries, as applicable,
as of the dates indicated and the results of their respective operations
and the changes in their respective cash flows for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included in the Registration Statement present fairly
the information required to be stated therein; and the pro forma financial
information, and the related notes thereto, included in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and is based upon good faith
estimates and assumptions believed by the Company to be reasonable;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company or any of its
subsidiaries, or any event or occurrence that would have a material adverse
effect on the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole (a "Material Adverse Effect"), otherwise
than as set forth or contemplated in the Prospectus; and except as set
forth or contemplated in the Prospectus neither the
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Company nor any of its subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business) material to
the Company and its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a Material Adverse Effect;
(f) the Trust has been duly created and is validly existing as a
statutory business trust in good standing under the laws of the State of
Delaware, with power and authority to own, lease and operate its properties
and conduct its business as described in the Prospectus, and the Trust has
conducted no business to date, and it will conduct no business in the
future that would be inconsistent with the description of the Trust set
forth in the Prospectus; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement and
instruments contemplated by the Trust Agreement; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the Trust Agreement and described in the
Prospectus; and the Trust is not a party to or subject to any action, suit
or proceeding of any nature;
(g) each of the Company's subsidiaries that is a national banking
association holds a valid Certificate of Authority from the Comptroller of
the Currency of the United States of America (the "Comptroller") to do
business as a national banking association under the laws of the United
States and is not in arrears with respect to reports required to be filed
with the Comptroller; each of the Company's subsidiaries that is a
federally chartered savings bank holds a valid Certificate of Charter from
the Office of Thrift Supervision (the "OTS") to do business as a federally
chartered savings bank and is not in arrears with respect to reports
required to be filed with the OTS; and each other of the Company's
subsidiaries has been duly incorporated or organized and is validly
existing as a corporation or limited liability company under the laws of
its jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus, and each subsidiary of the Company has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have a
Material Adverse Effect; and all the outstanding shares of capital stock of
each subsidiary of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable, and (except for NBC Capital
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Markets, Inc., of which 20% of the issued and outstanding shares of capital
stock are owned by employees) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests
and claims;
(h) this Agreement has been duly authorized, executed and delivered by
the Trust and the Company;
(i) the Company has an authorized capitalization as set forth in the
Prospectus. All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully-paid and non-
assessable and are not subject to any pre-emptive or similar rights; and,
except as described in the Prospectus and rights outstanding under the
Company's stock option plans, there are no outstanding rights (including,
without limitation, pre-emptive rights), warrants or options to acquire, or
instruments convertible into or exchangeable for, any shares of capital
stock or other equity interest in the Company or any of its subsidiaries,
or any contract, commitment, agreement, understanding or arrangement of any
kind relating to the issuance of any capital stock of the Company or any
such subsidiary, any such convertible or exchangeable securities or any
such rights, warrants or options;
(j) the Preferred Securities have been duly authorized by the Trust,
and, when issued and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be duly issued and
delivered, will be fully paid and non-assessable, will constitute valid and
binding obligations of the Trust and will conform to the descriptions
thereof in the Prospectus; and the issuance of the Preferred Securities is
not subject to any preemptive or similar rights;
(k) the Common Securities have been duly authorized by the Trust and
upon delivery by the Trust to the Company against payment therefor as
contemplated in the Trust Agreement, will be duly issued and fully paid
and, subject to the qualification that holders of Common Securities may be
obligated to make payments as set forth in the Trust Agreement, non-
assessable and will conform to the description thereof contained in the
Prospectus; and the issuance of the Common Securities is not subject to any
preemptive or similar rights;
(l) the Guarantee, the Trust Agreement, the Subordinated Debentures
and the Indenture (the Guarantee, the Trust Agreement, the Subordinated
Debentures and the Indenture being collectively referred to herein as the
"Company Agreements") have each been duly authorized by the Company and
when validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee, in the case of the Trust Agreement, by
the Property Trustee, the Delaware Trustee and the Administrative Trustees
and, in the case of the Indenture, by the Debenture Trustee, and, in the
case of the Subordinated Debentures, when validly issued by the Company and
duly authenticated and delivered by the Debenture Trustee against payment
therefor as contemplated by the Company Agreements, will constitute valid
and legally
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binding obligations of the Company, enforceable in accordance with their
respective terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (regardless of whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; the Trust Agreement, the Indenture and the
Guarantee have each been duly qualified under the Trust Indenture Act; the
Subordinated Debentures are entitled to the benefits of the Indenture; and
the Company Agreements, which will be in substantially the form filed as
exhibits to the Registration Statement, will conform in all material
respects to the descriptions thereof in the Prospectus;
(m) the issue and sale of the Preferred Securities and the Common
Securities by the Trust, the purchase of the Subordinated Debentures by the
Trust and the performance by the Trust of all of its obligations under the
Preferred Securities, the Common Securities, the Trust Agreement and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Trust is a party or by which the Trust is bound or to which any
of the property or assets of the Trust is subject, nor will any such action
result in any violation of the provisions of the Trust Agreement or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trust or any of
its respective properties; and no consent, approval, authorization, order,
license, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Preferred Securities and the Common Securities by the Trust, the purchase
of the Subordinated Debentures by the Trust or the consummation by the
Trust of the transactions contemplated by the Trust Agreement or this
Agreement, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Preferred Securities by the Underwriters;
(n) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Charter or Certificate of Incorporation or By-Laws or
other organizational document or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them or any of
their respective properties is bound, except for violations and defaults
which individually or in the aggregate would not have a Material Adverse
Effect or which would not, individually or in the aggregate, have a
material adverse effect on the rights of the holders of the Preferred
Securities; the issuance by the Company of the Guarantee and the
Subordinated Debentures, the purchase of the Common Securities and the
performance by the Company of all of the provisions of its obligations
under the
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Company Agreements and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Charter, Articles or the By-Laws of the
Company or any of its subsidiaries or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its subsidiaries or any of their
respective properties, except for conflicts, breaches, violations and
defaults (other than any conflicts, breaches, violations or defaults in
respect of the Charter or the By-Laws of the Company) that would not,
individually or in the aggregate, have a Material Adverse Effect; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the issuance by the Company of the Guarantee and the
Subordinated Debentures, the purchase of the Common Securities or the
consummation by the Company of the transactions contemplated by the Company
Agreements and this Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have
been obtained under the Securities Act, the Trust Indenture Act and as may
be required under state securities or Blue Sky Laws in connection with the
issuance of the Guarantee and the Subordinated Debentures by the Company;
(o) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their respective
properties or to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries
is or may be the subject which, if determined adversely to the Company or
any of its subsidiaries, could individually or in the aggregate have, or
reasonably be expected to have, a Material Adverse Effect, and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and there
are no statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
which are not filed or described as required;
(p) Ernst & Young LLP who have audited certain financial statements of
the Company and its subsidiaries and KPMG, LLP who have audited certain
financial statements of the Company and its subsidiaries and of CCB
Financial Corporation and its subsidiaries are each independent public
accountants as required by the Securities Act;
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(q) the Company and its subsidiaries have good and marketable title in
fee simple to all items of real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred to
in the Prospectus or such as would not have a Material Adverse Effect; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, existing and enforceable leases
with such exceptions as are not material and do not interfere with the use
of such property and buildings by the Company or its subsidiaries;
(r) no relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Trust or the Company
or any of its subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the
Prospectus which is not so described;
(s) the Trust is not and, after giving effect to the offering and sale
of the Preferred Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act"); and
(t) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, except where the failure
to own, possess or obtain any such license, permit, certificate, consent,
order approval or other authorization would not have a Material Adverse
Effect. Neither the Company nor any such subsidiary has received any
actual notice of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order, approval or other
authorization, except as described in the Registration Statement and the
Prospectus; and each of the Company and its subsidiaries is in compliance
with all laws and regulations relating to the conduct of its business as
conducted as of the date hereof, except where the failure to be in
compliance with such laws and regulations would not have a Material Adverse
Effect.
5. The Trust and the Company, jointly and severally, each covenants and
agrees with each of the several Underwriters as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file
the final
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Prospectus with the Commission within the time periods specified by Rule
424(b) and Rule 430A under the Securities Act; and to furnish copies of the
Prospectus to the Underwriters in New York City prior to 10:00 a.m., New
York City time, on the Business Day next succeeding the date of this
Agreement in such quantities as the Representatives may reasonably request;
(b) to deliver, at the expense of the Company, to the Representatives,
10 conformed copies of the Registration Statement (as originally filed) and
each amendment thereto, in each case including exhibits, and to each other
Underwriter a conformed copy of the Registration Statement (as originally
filed) and each amendment thereto, in each case without exhibits and,
during the period mentioned in paragraph (e) below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) as the Representatives may reasonably request;
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the Representatives
a copy of the proposed amendment or supplement for review and not to file
any such proposed amendment or supplement to which the Representatives
reasonably object;
(d) to advise the Representatives promptly, and to confirm such advice
in writing or via electronic mail, (i) when the Registration Statement has
become effective, (ii) when any amendment to the Registration Statement has
been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amendment to the Prospectus has been filed and to furnish
the Representatives with copies thereof, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for any additional information, (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose, (vi) of the
occurrence of any event, within the period referenced in paragraph (e)
below, as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, and (vii) of the receipt by the Trust or the Company of any
notification with respect to any suspension of the qualification of the
Preferred Securities, the Guarantee or the Subordinated Debentures for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order, or of any order preventing or suspending
the use of any preliminary prospectus or the Prospectus, or of any order
suspending any such qualification of the Preferred Securities, the
Guarantee or the Subordinated Debentures, or notification of any such order
thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
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(e) if, during such period of time after the first date of the public
offering of the Preferred Securities as in the opinion of counsel for the
Underwriters and the Company a prospectus relating to the Preferred
Securities is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to amend
or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to the
Company) to which Preferred Securities may have been sold by the
Representatives on behalf of the Underwriters and to any other dealers upon
request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(f) to endeavor to qualify the Preferred Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such qualification
in effect so long as reasonably required for distribution of the Preferred
Securities; provided that neither the Trust nor the Company shall be
--------
required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement of the Company
and its consolidated subsidiaries which will satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
"effective date" (as defined in Rule 158) of the Registration Statement;
(h) so long as the Preferred Securities are outstanding, to furnish to
the Representatives copies of all reports or other communications
(financial or other) furnished to holders of the Preferred Securities, and
copies of any reports and financial statements furnished to or filed with
the Commission or any national securities exchange;
(i) during the period beginning on the date hereof and continuing to
and including the Business Day following the Closing Date, not to offer,
sell, contract to sell, or otherwise dispose of, except as provided
hereunder, any Preferred Securities, any other beneficial interests in the
assets of the Trust, or any preferred securities or any other securities of
the Trust or the Company, as the case may be, that are substantially
similar to the Preferred Securities (including any guarantee of such
securities) or any securities that are convertible into or exchangeable
for, or that represent the right to receive securities, preferred
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securities or any such substantially similar securities of either the Trust
or the Company without the prior written consent of the Representatives;
(j) in the case of the Company, to issue the Guarantee concurrently
with the issue and sale of the Preferred Securities as contemplated herein
and in the Prospectus;
(k) to use the net proceeds received by the Company from the sale of
the Preferred Securities pursuant to this Agreement in the manner specified
in the Prospectus under the caption "Use of Proceeds";
(l) to use its best efforts to list, subject to notice of issuance,
the Preferred Securities on the New York Stock Exchange (the "Exchange");
and, if the Company elects to dissolve the Trust and to distribute the
Subordinated Debentures to the holders of the Preferred Securities in
liquidation of the Trust, to use its best efforts to list the Subordinated
Debentures, subject to notice of issuance, on the Exchange prior to such
distribution;
(m) to pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Preferred Securities, the Guarantee
and the Subordinated Debentures under the Securities Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Company
Agreement, the Preferred Securities, the Subordinated Debentures, any Blue
Sky Memorandum, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and
delivery of the Preferred Securities, the Guarantee and Subordinated
Debentures; (iii) all expenses in connection with the qualification of the
Preferred Securities, the Guarantee and the Subordinated Debentures for
offering and sale under state securities laws as provided in Section 5(f)
hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky survey(s); (iv) any fees charged by securities rating services
for rating the Preferred Securities, the Guarantee and the Subordinated
Debentures; (v) any filing fees incident to any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Preferred Securities and the issuance of the Guarantee and the
Subordinated Debentures; (vi) the cost of preparing the Preferred
Securities and the Subordinated Debentures; (vii) the fees and expenses of
any Trustee (as defined in the Trust Agreement), Debenture Trustee and
Guarantee Trustee, and any agent of any trustee and the fees and
disbursements of counsel for any trustee in connection with the Trust
Agreement, the Indenture, the Guarantee and the Preferred Securities;
(viii) the cost of qualifying the Preferred Securities with The Depository
Trust Company; (ix) any expenses incurred by the Company in connection with
a
12
"road show" presentation to potential investors; (x) the cost and charges
of any transfer agent; (xi) any fees and expenses in connection with
listing the Preferred Securities and the Subordinated Debentures on the
Exchange and the cost of registering the Preferred Securities and the
Subordinated Debentures under Section 12 of the Exchange Act; and (xii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section.
6. The several obligations of the Underwriters hereunder to purchase the
Preferred Securities on the Closing Date are subject to the performance by each
of the Trust and the Company of its obligations hereunder and to the following
additional conditions:
(a) the Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than
5:00 P.M., New York City time, on the date hereof; and no stop order
suspending the effectiveness of the Registration Statement or any post-
effective amendment shall be in effect, and no proceedings for such purpose
shall be pending before or, to the knowledge of the Company or the Trust,
threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5(a) hereof; and all requests
for additional information shall have been complied with to the
satisfaction of the Representatives;
(b) the representations and warranties of the Trust and the Company
contained herein are true and correct on the date hereof and on and as of
the Closing Date as if made on and as of the Closing Date and the Trust and
the Company shall have complied with all agreements and all conditions on
their part to be performed or satisfied hereunder at or prior to the
Closing Date;
(c) on the Closing Date, the Preferred Securities and the Subordinated
Debentures shall be rated in one of the four highest rating categories for
long term debt by Moody's Investor's Service and by Standard & Poor's
Ratings Group, a division of XxXxxx-Xxxx, Inc., and the Company shall have
delivered to the Representatives a letter dated the Closing Date, from each
such rating agency, or other evidence satisfactory to the Representatives,
confirming that the Preferred Securities and the Subordinated Debentures
have such ratings; and subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have been any
downgrading, nor shall any notice have been given of (i) any downgrading,
(ii) any intended or potential downgrading or (iii) any review or possible
change that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
13
(d) since the date hereof or the respective dates as of which
information is given in the Prospectus there shall not have been any
material change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any event or occurrence having a Material
Adverse Effect, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Preferred Securities on the Closing
Date on the terms and in the manner contemplated in the Prospectus; and
neither the Company nor any of its subsidiaries has sustained since the
date of the latest audited financial statements included in the Prospectus
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order to decree, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date certificates of executive officers of the Trust and the Company, with
specific knowledge about the Trust and the Company's financial matters,
satisfactory to the Representatives to the effect set forth in subsections
(a) through (c) (with respect to the respective representations,
warranties, agreements and conditions of the Trust and the Company) of this
Section and to the further effect that there has not been any event or
occurrence having a Material Adverse Effect except as set forth or
contemplated in the Registration Statement;
(f) Bass, Xxxxx & Xxxx PLC, counsel for the Trust and the Company,
shall have furnished to the Representatives their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(iii) each of the Company's subsidiaries that is a national
banking association holds a valid Certificate of Authority from the
Comptroller to do business as a national banking association under the
laws of the United States; each of the Company's subsidiaries that is
a federally chartered savings bank holds a valid Certificate of
Charter from the OTS to do business as a federally chartered savings
bank under the laws of the United
14
States; and each of the Company's subsidiaries that is a "significant
subsidiary" as defined in Rule 1-02(w) of Regulation S-X promulgated
by the Commission (a "significant subsidiary") has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus, and each such significant subsidiary has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified and in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and all
of the outstanding shares of capital stock of each subsidiary have
been duly and validly authorized and issued, are fully paid and non-
assessable, and (except for shares of NBC Capital Markets, Inc. owned
by employees thereof) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iv) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to such counsel's knowledge, threatened
against or affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a Material Adverse Effect; to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others; and such counsel does not know of any
statutes, regulations, contracts or other documents required to be
described in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement that are not described or
filed as required;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Subordinated Debentures are in the form prescribed in
or pursuant to the Indenture, have been duly and validly authorized by
the Company by all necessary corporate action and, when completed,
executed and authenticated as specified in or pursuant to the
Indenture and issued and delivered against payment therefor as
specified in the Company Agreements, will be valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent
transfer or conveyance, reorganization, arrangement, moratorium and
other similar laws relating to or affecting
15
creditors' rights generally, to general equitable principles (whether
considered in a proceeding in equity or at law);
(vii) the Indenture, the Guarantee and the Trust Agreement have
each been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Debenture
Trustee (in the case of the Indenture), by the Guarantee Trustee (in
the case of the Guarantee) and by the Property Trustee, the Delaware
Trustee and the Administrative Trustees (in the case of the Trust
Agreement) constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, arrangement, moratorium and other similar laws
relating to or affecting creditors' rights generally, to general
equitable principles (whether considered in a proceeding in equity or
at law); and the Indenture, the Guarantee and the Trust Agreement have
been duly qualified under the Trust Indenture Act;
(viii) neither the Company nor any of its significant
subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under, its Charter, Articles
or Certificate of Incorporation or By-Laws or other organizational
document or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate would
not have a Material Adverse Effect; the issue and sale of the
Preferred Securities and the Common Securities by the Trust, the
issuance of the Guarantee and the Subordinated Debentures by the
Company, the purchase of the Common Securities by the Company, the
performance by the Trust of its obligations under the Trust Agreement
and this Agreement, and the performance by the Company of its
obligations under the Company Agreements and this Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Charter, Articles or the By-Laws of
the Company or its subsidiaries or, to such counsel's knowledge, any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties;
16
(ix) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Preferred
Securities and the Common Securities by the Trust or the issuance of
the Guarantee and the Subordinated Debentures or the purchase of the
Common Securities by the Company or the consummation of the other
transactions contemplated by the Company Agreements or this Agreement,
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act and the Trust Indenture Act and as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Preferred Securities by the
Underwriters or the issuance of the Guarantee and the Subordinated
Debentures by the Company;
(x) the statements set forth (i) in the Prospectus under the
captions "Information about National Commerce Financial Corporation --
Government Regulation and Supervision", "Risk Factors -- Risks
Related to an Investment in National Commerce Financial Corporation --
NCF is Subject to Significant Government Regulation Over Which It
Has No Control. Unforeseen Changes in Regulations Applicable to NCF's
Business Could Affect its Financial Conditions", "Description of the
Trust", "Description of the Junior Subordinated Debentures",
"Description of the Trust Preferred Securities", "Description of the
Guarantee" and "Relationship Among the Trust Preferred Securities, the
Junior Subordinated Debentures and the Guarantee", and (ii) in the
Prospectus as amended or supplemented under similar applicable titles,
insofar as they purport to constitute summaries of certain terms of
the Preferred Securities, the Subordinated Debentures and the
Guarantee and the Company Agreements, in each case constitute accurate
summaries of the Company Agreements and of the terms of the Preferred
Securities, the Subordinated Debentures and the Guarantee, as set
forth in the Company Agreements, in all material respects;
(xi) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (other than the financial statements included therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the
Trust Indenture Act and no facts have come to such counsel's attention
which lead them to believe that (other than the financial statements
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Securities Act and the Trust Indenture Act and believes that
(other than the financial statements included therein, as to which
such counsel need express no belief and other than that part of the
Registration Statement which constitutes the Form T-1 of the Trustee
under the Trust Indenture Act) the
17
Registration Statement and the prospectus included therein at the time
the Registration Statement became effective contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that the Prospectus, as amended or
supplemented, if applicable, contains any untrue statement of a
material fact or omits 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;
(xii) the Trust is not and, after giving effect to the offering
and sale of the Preferred Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act; and
(xiii) to such counsel's knowledge, each of the Company and its
subsidiaries owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts
and other tribunals, domestic or foreign, necessary to own or lease,
as the case may be, and to operate its properties and to carry on its
business as conducted as of the date hereof except where the failure
to own, possess or obtain any such item or make such declaration or
filing would not, individually or in the aggregate, have a Material
Adverse Effect, and, to such counsel's knowledge, neither the Company
nor any such subsidiary has received any actual notice of any
proceeding relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization,
except as described in the Registration Statement and the Prospectus
or except such revocations or modifications that would not,
individually or in the aggregate, have a Material Adverse Effect; and
each of the Company and its subsidiaries is in substantial compliance
with all laws and regulations relating to the conduct of its business
as conducted as of the date of the Prospectus;
(g) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Trust and the Company, shall have furnished to the Representatives, the
Company and the Trust their written opinion, dated the Closing Date, in
form and substance satisfactory to the Representatives, to the effect that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust
Act, and all filings required under the laws of the State of Delaware
with respect to the creation and valid existence of the Trust as a
business trust have been made;
18
(ii) under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to own its
property and conduct its business, all as described in the Prospectus;
(iii) the Trust Agreement constitutes a legal, valid and binding
obligation of the Company and the Trustees (as defined in the Trust
Agreement), and is enforceable against the Company and the Trustees
(as defined in the Trust Agreement), in accordance with its terms,
except to the extent the same may be limited by (1) bankruptcy,
insolvency, fraudulent transfer and conveyance, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and remedies, (2) general principles of
equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding at
equity or at law), and (3) the effect of applicable public policy on
the enforceability of provisions relating to indemnification and
contribution;
(iv) under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to (a) execute
and deliver, and perform its obligations under, this Agreement and (b)
issue and perform its obligations under the Preferred Securities and
the Common Securities;
(v) under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Trust of this Agreement,
and the performance by the Trust of its obligations hereunder, have
been duly authorized by all necessary action on the part of the Trust;
(vi) the Preferred Securities are authorized by the Trust
Agreement and, when issued and delivered by the Trust to the
purchasers thereof against payment therefor in accordance with the
Trust Agreement, will be validly issued and, subject to the
qualifications set forth herein, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust and will
entitle holders of the Preferred Securities (the "Securityholders") to
the benefits provided by the Trust Agreement; the Securityholders, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware; provided that such counsel may note that the
Securityholders may be obligated, pursuant to the Trust Agreement, to
(a) provide indemnity and/or security in connection with and pay taxes
or governmental charges arising from transfers or exchanges of
securities certificates and the issuance of replacement securities
certificates and (b) provide security and indemnity in connection with
requests of or directions to the Property Trustee to exercise its
rights and remedies under the Trust Agreement;
19
(vii) the Common Securities are authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
in accordance with the Trust Agreement, will be validly issued
undivided beneficial interests in the assets of the Trust;
(viii) under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Preferred Securities and the Common
Securities is not subject to preemptive rights;
(ix) the issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, the consummation by the
Trust of the transactions contemplated hereby and compliance by the
Trust with its obligations hereunder will not violate (a) any of the
provisions of the Certificate of Trust of the Trust or the Trust
Agreement, or (b) any applicable Delaware law or administrative
regulation;
(x) assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than maintaining the Delaware Trustee as required by
the Delaware Business Trust Act and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State
of Delaware, no authorization, approval, consent or order of any
Delaware court or governmental authority or agency is required to be
obtained by the Trust solely in connection with the issuance and sale
of the Preferred Securities and the Common Securities (in rendering
the opinion expressed in this paragraph (x), such counsel need express
no opinion concerning the securities laws of the State of Delaware);
and
(xi) assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than maintaining the Delaware Trustee as required by
the Delaware Business Trust Act and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the State
of Delaware and that the Trust is treated as a grantor trust for
United States federal income tax purposes, the Securityholders (other
than those Securityholders who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by the State
of Delaware solely as a result of their participation in the Trust,
and the Trust will not be liable for any income tax imposed by the
State of Delaware;
(h) Bass, Xxxxx & Xxxx PLC, tax counsel for the Trust and the Company,
shall have furnished to the Representatives their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
20
(i) the statements in the Prospectus under the caption
"Material Federal Income Tax Consequences", to the extent that they
constitute summaries of matters of laws or regulation or legal
conclusions, have been reviewed by such counsel and fairly summarize
the matters described therein in all material respects;
(ii) the Trust will be classified as a grantor trust and not as
an association taxable as a corporation for United States federal
income tax purposes. Accordingly, for United States federal income
tax purposes, each holder of Preferred Securities will generally be
treated as owning an undivided beneficial interest in the Subordinated
Debentures; and
(iii) the Subordinated Debentures will be classified for United
States federal income tax purposes as indebtedness of the Company.
In rendering the opinions described in paragraphs (f), (g) and (h)
above, each such counsel may rely (A) as to matters involving the
application of laws other than the laws of the United States and the States
of New York, Delaware and Tennessee, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; and (B) as to
matters of fact, to the extent such counsel deems proper, on certificates
of responsible officers of the Trust and the Company and certificates or
other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Trust
and the Company. The opinion of such counsel for the Trust and the Company
shall state that the opinion of any such other counsel upon which they
relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon. With
respect to the matters to be covered in subparagraph (xi) of paragraph (f)
above counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto but is without
independent check or verification except as specified.
The opinions described in paragraphs (f), (g) and (h) above shall be
rendered to the Underwriters at the request of the Trust and the Company
and shall so state therein.
(i) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date, Ernst & Young LLP and
KPMG LLP shall have furnished to the Representatives letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to
the Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial
21
statements and certain financial information contained in the Registration
Statement and the Prospectus;
(j) the Representatives shall have received on and as of the Closing
Date an opinion of Cravath, Swaine & Xxxxx, counsel to the Underwriters,
with respect to the validity of the Preferred Securities, the Trust
Agreement, the Subordinated Debentures, the Indenture, the Guarantee, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(k) the Preferred Securities to be delivered on the Closing Date shall
have been approved for listing on the Exchange, subject to official notice
of issuance; and
(l) on or prior to the Closing Date the Trust and the Company shall
have furnished to the Representatives such further certificates and
documents as the Representatives shall reasonably request.
7. The Trust and the Company jointly and severally agree to indemnify and
hold harmless each Underwriter, each affiliate of any Underwriter which assists
such Underwriter in the distribution of the Preferred Securities, and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Trust or the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Trust and the Company
in writing by such Underwriter through the Representatives expressly for use
therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Trust and the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Trust and the Company
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Trust and
the Company to each Underwriter, but only with reference to information relating
to such Underwriter furnished to the Trust and the Company in writing by such
Underwriter through the Representatives expressly for use in the
22
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the
Underwriters, each affiliate of any Underwriter which assists such Underwriter
in the distribution of the Preferred Securities and such control persons of
Underwriters shall be designated in writing by X.X. Xxxxxx Securities Inc. and
any such separate firm for the Trust and the Company, their respective
directors, their respective officers who sign the Registration Statement and
such control persons of the Trust and the Company shall be designated in writing
by the Trust and the Company. The Indemnifying Person shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such
23
Indemnified Person from all liability on claims that are the subject matter of
such proceeding and does not include a statement as to or an admission of
culpability or a failure to act by or on behalf of any Indemnified Party.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Trust and the Company on the one hand and the
Underwriters on the other hand from the offering of the Preferred Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Trust and the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Trust and the Company on
the one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the net proceeds from the offering (before deducting
expenses) received by the Trust and the Company and the total underwriting
discounts and the commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Preferred Securities. The relative fault of the Trust and
the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Trust and the Company or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Trust, the Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
---
rata allocation (even if the Underwriters were treated as one entity for such
----
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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. The Underwriters'
obligations to contribute pursuant
24
to this Section 7 are several in proportion to the respective number of
Preferred Securities set forth opposite their names in Schedule I hereto, and
not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law of in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Trust and the Company set forth in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Trust and the Company, its officers or directors or any other
person controlling the Trust or the Company and (iii) acceptance of and payment
for any of the Preferred Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Trust and the Company, if after the execution and delivery of this Agreement
and at any time on or prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York, Tennessee, North Carolina, South
Carolina, [Florida], Virginia, Mississippi, Arkansas, Georgia or West Virginia
shall have been declared by either Federal, New York, Tennessee, North Carolina,
South Carolina, [Florida], Virginia, Mississippi, Arkansas, Georgia or West
Virginia authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the Representatives, is material and adverse and
which, in the judgment of the Representatives, makes it impracticable or
inadvisable to market the Preferred Securities on the terms and in the manner
contemplated in the Prospectus or (v) a material disruption has occurred in
commercial banking or securities settlement of clearance in the United States or
with respect to Clearstream or Euroclear systems in Europe.
9. This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any post-
effective amendment) by the Commission.
If on the Closing Date any one or more of the Underwriters shall fail or
refuse to purchase Preferred Securities which it or they have agreed to purchase
hereunder on such date, and the aggregate number of Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate number of the Preferred
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Preferred Securities
set forth opposite their respective names in Schedule I bears to the aggregate
number of Preferred Securities set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Representatives may
specify, to
25
purchase the Preferred Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
--------
that in no event shall the number of Preferred Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by a number in excess of one-tenth of such number of Preferred
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Preferred
Securities which it or they have agreed to purchase hereunder on such date, and
the aggregate number of Preferred Securities with respect to which such default
occurs is more than one-tenth of the aggregate number of Preferred Securities to
be purchased on such date, and arrangements satisfactory to the Representatives
and the Company for the purchase of such Preferred Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Trust and the
Company. In any such case either the Representatives or the Trust and the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Trust or the Company
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Trust or the Company shall be unable to perform its
obligations under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company agrees to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder. The
Company and the Trust shall in no event be liable to the Underwriters for the
loss of anticipated profits from the transactions contemplated by this
Agreement.
11. This Agreement shall inure to the benefit of and be binding upon the
Trust, the Company, the Underwriters, each affiliate of any Underwriter which
assists such Underwriter in the distribution of the Preferred Securities, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Preferred Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. alone on behalf of the
Underwriters, and any such action taken by [the Representatives jointly or by
X.X. Xxxxxx Securities Inc. shall be binding upon the Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any
26
standard form of telecommunication. Notices to the Underwriters shall be given
to the Representatives c/o X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (telefax:______); Attention: Syndicate Department. Notices
to the Company shall be given to it at Xxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx
00000, (telefax: (000) 000-0000); Attention: Chief Financial Officer.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
27
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
NATIONAL COMMERCE CAPITAL
TRUST II,
By: National Commerce Financial Corporation, as
depositor,
By:_______________________
Title:
NATIONAL COMMERCE
FINANCIAL CORPORATION,
By:_______________________
Title:
Accepted: December, 2001
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
Acting severally on behalf
of themselves and the
several Underwriters listed
in Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
By:___________________________
Title:
28
SCHEDULE I
Number of Preferred
-------------------
Underwriter Securities to be Purchased
----------- --------------------------
X.X. Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
