As filed with the Securities and Exchange Commission on May 27, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
__________
FIRST COMMERCE CORPORATION
(Exact name of registrant as specified in its charter)
Louisiana 201 St. Charles Avenue 72-0701203
(State or other New Orleans, Louisiana 70170 (I.R.S.Employer
jurisdiction of (504) 623-1371 Identification No.)
of incorporation or (Address, including zip code, and
organization) telephone number, including area
code, of registrant's principal
executive offices)
__________
Michael A. Flick
Executive Vice President, Secretary and
Chief Administrative Officer
First Commerce Corporation
201 St. Charles Avenue
New Orleans, Louisiana 70170
(504) 623-1371
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Margaret F. Murphy
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170-5100
(504) 582-8000
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes
effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Amount Proposed maximum Proposed maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered(1) per share(2) offering price(2) fee
- - ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 shares $42.65625 $42,656,250 $12,926.14
($5.00 par value per share)
====================================================================================================
</TABLE>
(1) Upon a stock split, stock dividend or similar transaction in the future and
during the effectiveness of this Registration Statement involving Common
Stock of the Company, the number of shares registered shall be
automatically increased to cover the additional shares in accordance with
Rule 416(a) under the Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low price per share of the Common Stock on The
Nasdaq Stock Market on May 20, 1997.
PROSPECTUS
[FIRST COMMERCE
CORPORATION LOGO]
1997 DIVIDEND AND INTEREST REINVESTMENT
AND STOCK PURCHASE PLAN
This Prospectus describes the 1997 Dividend and Interest
Reinvestment and Stock Purchase Plan (the "Plan") of First Commerce
Corporation (the "Company"). The Plan will offer the record holders
of Company securities, including Company Common Stock, par value
$5.00 per share (the "Common Stock"), the 12 3/4 % Convertible
Debentures due 2000, Series A of the Company (the "Series A
Debentures") and the 12 3/4 % Convertible Debentures due 2000, Series
B of the Company (the "Series B Debentures"), the opportunity to
apply the dividend or interest payments on such securities toward the
purchase of whole or fractional shares of Common Stock without
incurring brokerage commissions, fees, service charges or other
expenses that would normally be charged if the record holder
purchased Common Stock on the open market. In addition, the Plan
will permit record holders of different classes or series of equity
or debt securities that the Company may issue in the future to
participate in the Plan if approved by resolution of the Board of
Directors of the Company.
Dividend and interest payments reinvested in the Plan will be
used to purchase shares of Common Stock at the market price, as
calculated under the Plan, at the time of purchase. Participants
also have the right to invest up to an additional $150,000 each
calendar year for the purchase of Common Stock at the market price,
as calculated under the Plan. Purchases of Common Stock under the
Plan will be made weekly and on the dividend and interest payment
dates of the respective securities included in the Plan, or as soon
as practicable thereafter, either directly from the Company or in the
open market. The Common Stock is traded on The Nasdaq Stock Market.
On May 22, 1997, the last reported sale price of the Common Stock was
$42.75 for each share.
If you do not desire to participate in the Plan, dividend and
interest payments will be made by check directly to you. You may,
however, elect that cash dividend and interest payments be deposited
electronically in any bank, savings, or other financial institution
account that you maintain by notifying First Chicago Trust Company of
New York, Post Office Box 2500, Jersey City, New Jersey 07303-2500,
telephone number (201) 324-0498 or toll free (800) 446-2617. Any
liquidation or property dividend will be delivered directly to you.
This Prospectus relates to 1,000,000 shares of Common Stock
registered for sale under the Plan. The Company recommends that you
retain this Prospectus for future reference.
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_________________________
The date of this Prospectus is May 27, 1997.
TABLE OF CONTENTS
THE COMPANY.........................................................3
DESCRIPTION OF THE 1997 DIVIDEND AND INTEREST REINVESTMENT
AND STOCK PURCHASE PLAN........................................3
Purpose and Other Considerations...............................3
Administration.................................................4
Eligibility....................................................5
Enrollment Procedures..........................................6
Book Shares and Certificates for Shares........................6
Optional Deposits of Common Stock..............................6
Optional Cash Investments......................................7
Reinvestment of Dividends and Interest.........................8
Sales of Plan Shares...........................................8
Transfers of Shares............................................8
Share Prices...................................................9
Fees and Charges...............................................9
Reports to Participants........................................10
Withdrawal from the Plan.......................................10
Termination of Plan Participation..............................11
Stock Splits, In-Kind Distributions, and Rights Offerings......11
Participants as Shareholders...................................11
Change or Termination of the Plan..............................11
FEDERAL INCOME TAX CONSEQUENCES.....................................12
Federal Income Tax Consequences with Regard to Common Stock....12
Federal Income Tax Consequences with Regard to Series A
Debentures and Series B Debentures.......................12
Federal Income Tax Consequences with Regard to Optional Cash
Contributions............................................12
Withholding....................................................13
USE OF PROCEEDS.....................................................13
INDEMNIFICATION OF DIRECTORS AND OFFICERS...........................13
AVAILABLE INFORMATION...............................................13
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE...................14
THE COMPANY
The Company is a multi-bank holding company providing
complete banking and related financial services through a
network of affiliated banks and other subsidiaries located in
Louisiana to the commercial and consumer markets in the Gulf
South, primarily Louisiana and southern Mississippi.
The principal executive offices of the Company are located
at 201 St. Charles Avenue, New Orleans, Louisiana 70170. Its
telephone number is (504) 623-1371.
DESCRIPTION OF THE 1997 DIVIDEND AND INTEREST REINVESTMENT
AND STOCK PURCHASE PLAN
Purpose and Other Considerations
The purpose of the Plan is to provide record holders
(collectively, "Security Holders") of Common Stock, Series A
Debentures, Series B Debentures, and any subsequently issued
series or classes of stock or debt instruments as the Company
Board of Directors (the "Board") may designate (collectively,
"Securities") with a simple and convenient way of reinvesting
dividend and interest payments on Securities and making
optional additional cash investments ("Optional Cash
Contributions") in shares of Common Stock at the current market
price without the payment of brokerage commissions, fees,
service charges or expenses other than a nominal charge for
processing Optional Cash Contributions by electronic debit.
Each Plan participant will have a plan account (a "Plan
Account") that records the shares of Common Stock ("Plan
Shares") allocable to such participant under the Plan. Plan
Shares consist of (i) those certificated shares of Common Stock
held in such participant's name on the stock records of the
Company, the dividends payable in respect of which have been
designated by such participant to be reinvested under the Plan,
and (ii) "Book Shares," which are shares of Common Stock held
in nominee name by the administrator (the "Administrator") of
the Plan, as to which such participant's ownership is evidenced
solely by book entry in Plan records and not by any
certificate. "Participating Securities" include certificated
Plan Shares and any other certificated Securities of a
participant, the dividends or interest payable in respect of
which have been designated by such participant to be reinvested
under the Plan.
The participation options offered under the Plan for
eligible Security Holders are:
Full Dividend and Interest Reinvestment
Reinvest cash dividends and
interest payments on all
Securities held of record.
Participants may also purchase
additional shares of Common Stock
by making Optional Cash
Contributions of $50 or more, up
to a total of $150,000 each
calendar year.
Partial Dividend and Interest Reinvestment
Reinvest dividends and interest
on only the Securities registered
in the name of the participant
that are specified on such
participant's enrollment forms.
Participants may also purchase
additional shares of Common Stock
by making Optional Cash
Contributions of $50 or more, up
to a total of $150,000 each
calendar year.
Dividend Reinvestment on Book Shares Only
Continue to receive cash
dividends and interest payments
on all Securities registered in
the name of the participant. The
enrollment form further directs
the Administrator to reinvest
automatically dividends on Book
Shares held in the participant's
Plan Account. Participants may
purchase shares of Common Stock
by making Optional Cash
Contributions of $50 or more, up
to a total of $150,000 each
calendar year.
Nothing contained in this Prospectus or in other Plan
information represents a recommendation by the Company or
anyone else that any person buy or sell Common Stock. A
decision to participate in the Plan should be made only after a
Security Holder has independently made the necessary investment
decision.
The value of Common Stock may increase or decrease. Plan
accounts of participants are not insured by the Securities
Investor Protection Corporation, the Federal Deposit Insurance
Corporation, or any other entity.
Administration
Administration of the Plan will be conducted by the bank,
trust company or other entity appointed from time to time by
the Company to act as Administrator. First Chicago Trust
Company of New York will be the Administrator.
The Administrator will be responsible for administering
the Plan, receiving all Optional Cash Contributions made by
participants, maintaining records of each participant's plan
account activities, issuing statements of account, and
performing other duties required by the Plan.
Participants may write to the Administrator at the
following address:
First Chicago Trust Company of New York
Post Office Box 2598
Jersey City, New Jersey 07303-2598
Be sure to include a reference to First Commerce Corporation.
Participants may contact the Administrator by telephone at
(201) 324-0498 or toll free at (800) 446-2617 for shareholder
customer service, including sale of shares of Common Stock.
Customer service representatives are available from 8:30 a.m.
to 7:00 p.m. Eastern Time each business day. An automated
voice response system is available 24 hours each day from 8:00
a.m. Eastern Time on Monday through 9:00 p.m. Eastern Time on
Saturday.
Internet: Messages forwarded on the Internet will be
responded to within one business day. The Administrator's
Internet address is "http://www.fctc.com."
E-Mail: The Administrator's e-mail address is:
"[email protected]."
TDD: (201) 222-4955 (telecommunications device for the
hearing impaired).
The Administrator also serves as transfer agent and
registrar for the Common Stock and may have other business
relationships with the Company from time to time.
Eligibility
Any Security Holder of record (a "Record Security Holder")
is eligible to participate in the Plan, provided such person
fulfills the prerequisites for participation described below
under "Enrollment Procedures." A person (a "Street Name
Beneficial Owner") who has voting or dispositive authority over
Securities registered in the name of a third party, such as a
bank, broker, nominee, or trustee, may not participate in the
Plan. A Street Name Beneficial Owner may become a Record
Security Holder eligible to participate in the Plan by first
obtaining the registration of Securities in such person's name
and thereby establishing a record account (a "Record Account")
on the Company's securities records reflecting Securities
ownership and then following the procedure for Record Security
Holders set forth below. A Street Name Beneficial Owner of
Securities should communicate with the record holder of such
Securities to determine what action should be taken to
accomplish the re-registration of such Securities. A person
who has received shares of Common Stock from a participant is
also eligible to participate in the Plan provided such person
likewise follows the procedure for Record Security Holders set
forth below. Notwithstanding the foregoing, the Company and
the Administrator retain the right to reject an enrollment
application submitted by a former participant if they consider
it in the best interests of the Plan.
Enrollment Procedures
Enrollment Forms. After being furnished with a copy of
this Prospectus, a Record Security Holder may join the Plan at
any time by completing and signing an enrollment form.
Requests for copies of enrollment forms, other Plan forms, and
this Prospectus should be made to the Administrator in writing
or by telephone. Enrollment forms will be processed as
promptly as practicable. Participation in the Plan will
commence when a properly completed enrollment form and any
other required documentation have been received by the
Administrator. Upon enrollment of a participant, the
Administrator will establish a Plan Account for such
participant that records the Plan Shares allocable to such
participant under the Plan.
Predecessor Plan Participants. Each participant in the
Predecessor Plan will automatically become a participant in the
Plan without sending in an enrollment form. All Participating
Securities of a participant under the Predecessor Plan will
automatically be deemed to be Participating Securities under
the Plan and all shares of Common Stock attributable to a
Predecessor Plan participant will automatically be deemed to be
shares allocable to a Plan account established for such
participant, as of the date that the Plan becomes effective. A
participant in the Predecessor Plan who does not desire to
participate in the Plan should follow the procedures set forth
in "Withdrawal from the Plan" below.
Book Shares and Certificates for Shares
Unless the Administrator is otherwise instructed, a
participant will not receive certificates for shares acquired
through the Plan. Ownership of Book Shares will be evidenced
solely by book entry in the Plan records and will be held in
nominee name by the Administrator under the Plan for the
benefit of such participant. A participant may, at any time or
from time to time, request in writing one or more certificates
for all or any number of the whole Book Shares held in such
participant's Plan Account. All such requests will be
processed promptly by the Administrator.
Book Shares held in a participant's Plan Account may not
be pledged or assigned. A participant who desires to pledge or
assign Book Shares must request from the Administrator that a
certificate be issued to the participant for such shares.
Optional Deposits of Common Stock
After the establishment of a Plan Account, a participant
may deposit free of charge into such Plan Account any number of
shares of Common Stock now or hereafter registered in the name
of the participant. Common Stock so surrendered will be
allocable to a participant's Plan Account as Book Shares.
To insure against loss resulting from mailing certificates
for Common Stock to the Administrator for deposit under the
Plan, the Plan provides for mail insurance free of charge for
certificates valued at up to $25,000. To be eligible for
certificate mailing insurance, an investor must observe the
following procedures. Certificates for Common Stock must be
mailed in the brown, pre-addressed envelopes supplied by the
Administrator. These Certificates will be insured for up to
$25,000 based on the current market value, provided the
certificates are mailed first class. If an investor does not
use the brown, pre-addressed envelope provided by the
Administrator, certificates for Common Stock should be mailed
to the Administrator at the address set forth above and insured
for possible mail loss at 2% of the market value of the
certificates (minimum of $20); this amount represents the
replacement cost of the certificates. The Administrator will,
as soon as practicable, send the participant a statement
confirming each deposit of certificates. A participant must
notify the Administrator of any claim within thirty calendar
days of the date that the lost certificates were mailed. To
submit a claim, an investor must be a participant or the
investor's loss must be incurred in connection with becoming a
participant. In the latter case, the claimant must enroll in
the Plan at the time that the insurance claim is processed.
The maximum insurance protection provided to the participant is
$25,000, and coverage is available only when the applicable
certificates are sent to the Administrator in accordance with
the procedures described above. This insurance covers the
replacement of certificates for shares of Common Stock but does
not protect against any loss resulting from fluctuations in the
value of such shares.
A Street Name Beneficial Owner of shares of Common Stock
may not deposit such shares with the Administrator under the
Plan. A Street Name Beneficial Owner may become a Record
Security Holder eligible to participate in the Plan and thereby
be able to deposit shares of Common Stock with the
Administrator under the Plan by re-registering such shares in
such participant's name and then following the procedures set
forth above for enrollment. Notwithstanding the foregoing, any
Street Name Beneficial Owner and any Record Security Holder
may, as an alternative outside the Plan, participate in the
direct registration system for any of the Securities, whereby a
Security Holder may be registered on the books of the Company
as the owner of a Security without the issuance of a
certificate or instrument evidencing such registration or
ownership.
Optional Cash Investments
A Plan participant may elect to make occasional or ongoing
Optional Cash Contributions to the Plan for the purchase of
shares of Common Stock at the current market price ("Optional
Cash Investments"). Each Optional Cash Investment must be at
least $50, and the sum of all Optional Cash Investments made in
any calendar year by a participant may not exceed $150,000.
There is no obligation to make any Optional Cash Investments.
A participant may make an initial Optional Cash Contribution
when enrolling in the Plan by delivering to the Administrator a
personal check or money order in United States dollars made
payable to "First Chicago--First Commerce" with the enrollment
form. Optional Cash Contributions may thereafter be made
through the use of a cash payment form that is attached to each
statement received from the Administrator or by automatic
deductions from your United States financial institution
account.
To initiate automatic deductions, a person must already be
a participant in the Plan and must complete, sign, and return
to the Administrator an automatic deductions form, which may be
obtained from the Administrator. Automatic deduction forms
will become effective as promptly as practicable; however,
participants should allow four to six weeks for the first
contribution to be initiated.
Once automatic deductions are begun, funds will be drawn
from the participant's designated financial institution account
on either the first or the fifteenth of each month, or both (as
chosen by you), or the next business day if either the first or
the fifteenth day is not a business day, and will normally be
invested within five business days. A participant should not
send cash. Some financial institutions charge for electronic
debits. Interested participants should consult their own
financial institutions for any applicable charges.
Participants will be charged a fee of $2 by the Administrator
for each investment by electronic debit. Participants may vary
the amount of such electronic debit investments from time to
time upon prior written notice to the Administrator.
The Administrator will arrange to purchase Common Stock
for the Plan with Optional Cash Contributions at least once
each calendar week. An "Investment Date" under the Plan is the
date in each calendar week selected by the Administrator when
it will purchase or begin to purchase shares of Common Stock
for the Plan with Optional Cash Contributions. No interest
will be paid on Optional Cash Contributions held by the
Administrator pending investment. Accordingly, it is suggested
that participants communicate with the Administrator to
determine the next scheduled Investment Date and transmit
Optional Cash Contributions so as to reach the Administrator
shortly before such Investment Date. Upon a participant's
request received by the Administrator at least one business day
prior to a scheduled Investment Date, an Optional Cash
Contribution not already invested in Common Stock will be
returned, without interest, to the participant.
Reinvestment of Dividends and Interest
On an enrollment form, a participant designates which of
such participant's Securities will be Participating Securities.
The dividends and interest on all Participating Securities will
be reinvested in Common Stock under the Plan as of the dividend
or interest payment date. No interest will be paid on
dividends or interest held by the Administrator pending
reinvestment. A participant may at any time increase or
decrease the number or principal amount of Participating
Securities by completing a revised enrollment form, which will
be effective upon receipt by the Administrator.
Sales of Plan Shares
At any time, a participant may request, either by
telephone or in writing to the Administrator, that all or a
portion of the whole shares of Common Stock allocable to such
participant's Plan Account be sold. Such shares will be sold
in the open market as soon as feasible by the Administrator.
The Administrator will send a check for the sale proceeds to
the participant as soon as practicable following such sale,
less a service fee (currently $15 for each transaction
requested by a participant), brokerage commission and any other
cost of sale. Fractional shares of Common Stock may be
liquidated only if the participant completely withdraws from
participation in the Plan or the Company terminates such
participant's Plan Account.
Transfers of Shares
If a participant desires to transfer, whether by gift or
private sale, all or a portion of such participant's shares of
Common Stock to another participant or to a person or entity
not already a participant, the participant may do so by
delivering to the Administrator a completed transaction request
form, any necessary transferee enrollment form, and such other
documentation as the Administrator may require. With respect
to certificated shares, stock certificates for such shares
accompanied by documentation as required by the Administrator
must also be delivered. Fractional shares of Common Stock may
be transferred only if the transferor participant completely
withdraws from participation in the Plan or the Company
terminates such participant's entire Plan Account. The
transferor and the transferee will be sent a transaction notice
indicating the transfer of shares.
Share Prices
Shares of Common Stock purchased for participants under
the Plan will be, at the Company's election, either newly
issued shares from the Company or shares of Common Stock
purchased in the open market. Below are descriptions of prices
for purchases and sales of shares under the Plan. Participants
do not have control over the price or the time at which Common
Stock is purchased or sold for their Plan Accounts. Thus,
participants bear the market risk associated with fluctuations
in the price of Common Stock.
The price for shares purchased from the Company will
be the average of the high and low sales prices of
Common Stock as reported on The Nasdaq Stock Market
for the relevant Investment Date or dividend or
interest payment date, or, if no prices are reported
for such date, the preceding date for which prices
are reported.
The price for shares purchased in the open market for
the Plan will be the weighted average price per share
of all shares purchased for the Plan in the open
market on the relevant Investment Date or dividend or
interest payment date.
The price for shares sold for the Plan will be the
current market price of the shares on the day that
they are sold, which is usually the day that the sale
request is received by the Administrator. The
Administrator will deduct from the proceeds of each
sale of shares from a participant's Plan Account a
service fee (currently $15 for each transaction
request by a participant), brokerage commissions, and
any other costs of sale.
As to all purchases and sales, each Plan Account will
also be charged any applicable deductions and
withholdings required by law.
The Administrator will sell shares of Common Stock
allocable to any Plan Account as soon as practicable following
the Administrator's receipt of a participant's sale
instructions. The Administrator will make purchases for the
Plan at least once each calendar week. The Administrator may
commingle each participant's funds with funds of other
participants for purposes of executing purchase and sale
transactions.
Fees and Charges
For each sale of shares from the Plan, a service fee
(currently $15 for each transaction request by a participant),
brokerage commissions, and any other costs of sale are deducted
from the proceeds. The Administrator will charge a fee of $2
for each Optional Cash Contribution made by electronic debit.
There is also a fee for duplicate statements as described below
in "Reports to Participants." The Company pays all other costs
of mailings, materials and other administration of the Plan.
All fees and charges are subject to change upon notice to
participants.
Reports to Participants
As soon as practical after each purchase of shares on
behalf of a participant, such participant will receive a
detailed statement of account. Duplicate account statements
may also be obtained from the Administrator. Participants will
be charged a fee of $5 for each such statement that is two or
more years old, not to exceed $25 for a single request for
statements covering more than one year.
Participants will receive copies of all communications
sent generally to Company shareholders, including annual
reports to shareholders, proxy material, any consent
solicitation material, and Internal Revenue Service
information, if appropriate, for reporting dividend income.
All notices, statements of account, and other communications
from the Administrator to a participant will be sent to the
participant's address of record; therefore, it is important
that a participant promptly notify the Administrator or the
Company of any change of address.
Withdrawal from the Plan
A participant may request to withdraw from the Plan at any
time by written or telephone instructions to that effect to the
Administrator. Such instructions will be processed as promptly
as possible after receipt. If a notice to terminate is
received by the Administrator on or after the record date for a
dividend or interest payment, the Administrator in its sole
discretion may either pay such dividend or interest in cash or
reinvest it in shares of Common Stock on behalf of the
terminating participant. If such dividend or interest is
reinvested, the Administrator may sell the shares purchased and
remit the proceeds to the participant, less any brokerage
commissions, any service fee, and any other costs of sale.
Upon termination the Administrator will send by first class
mail certificates for all whole shares of Common Stock in such
participant's Plan Account to such participant at such
participant's address of record. Any fractional share held in
such Plan Account will be sold at the current market price of
Common Stock, and the proceeds thereof, less any brokerage
commissions, any service fee and any other costs of sale, will
be remitted to the participant by check.
Upon withdrawal from the Plan or the termination by the
Company or the Administrator of a participant's participation
in the Plan as described in "Termination of Plan Participation"
below, a participant may also sell or transfer all or a portion
of the shares allocable to such participant's Plan Account in
the manner described in "Sales of Plan Shares" and "Transfers
of Shares," respectively. Upon such withdrawal, the
Administrator will remit to the participant a check for the
sale proceeds of the shares sold, less brokerage commission,
the applicable service fee, any other costs of sale and any
applicable deductions and withholdings required by law. The
value of any fractional share so liquidated will be determined
as indicated above with respect to complete withdrawal from the
Plan.
Termination of Plan Participation
The Company or the Administrator may, in their discretion,
terminate a participant's participation in the Plan at any time
and will do so if a participant's continued participation is
not considered to be in the best interests of the Company. The
objective of the Plan is to encourage long-term investment by
allowing Security Holders to accumulate Common Stock over a
long period of time, thus providing benefits to Security
Holders and the Company. Excessive activity in a participant's
account does not serve this objective and may cause the Company
or the Administrator to terminate the eligibility of a
participant and such participant's Plan Account. The Company
or the Administrator may terminate a participant's Plan Account
upon sending such participant a written notice of termination.
The Administrator will send by first class mail certificates
for all whole shares of Common Stock. Any fractional share
held in such Plan Account will be sold at the current market
price of Common Stock, and the proceeds thereof, less any
brokerage commissions, any service fee and any other costs of
sale, will be remitted to the participant by check.
Stock Splits, In-Kind Distributions, and Rights Offerings
Any stock dividend or split shares of Common Stock
distributed on shares held by both the Administrator for a
participant in a Plan Account and by a participant will be
credited to the participant's Plan Account as Book Shares.
Participation in any rights offering will be based upon both
shares of Common Stock registered in a participant's name and
any Book Shares, including any fractional shares, credited to
such participant's Plan Account.
Participants as Shareholders
A participant will have the exclusive right to vote all
whole shares of Common Stock allocable to such participant's
Plan Account in person or by proxy. Whole shares of Common
Stock allocable to a Plan Account will not be voted unless the
participant or such participant's proxy votes them. Fractional
shares of Common Stock will accrue dividends but not carry
voting rights. A participant will be recognized as a
shareholder of the Company for purposes of eligibility for
admission to the Company's shareholder meetings, voting of
whole shares of Common Stock allocable to such participant's
Plan Account, disposing of shares of Common Stock allocable to
such Plan Account, and the communications that the Company
sends from time to time to its shareholders.
Change or Termination of the Plan
The Company may at any time and from time to time, at its
sole option, modify or terminate the Plan, in whole, in part or
in respect of participants in one or more jurisdictions,
without the approval of participants, but no such amendment
shall result in a distribution to the Company of any amount
allocable to a Plan Account of any participant. A participant
may sell or transfer all or a portion of the Common Stock
allocable to such participant's Plan Account upon the Company's
termination of the entire Plan or of such participant's Plan
Account.
FEDERAL INCOME TAX CONSEQUENCES
Following is a summary of the major federal income tax
consequences of participation in the Plan, which should be used
as a guide for each participant in pursuing additional advice
relevant to the participant's specific situation. Participants
are urged to seek professional advice with respect to their tax
situation.
Federal Income Tax Consequences with Regard to Common Stock
A participant whose Participating Securities include
Common Stock who acquires additional shares of Common Stock
from the Company by the reinvestment of dividends (including
corporate shareholders) will be treated as having received
dividend income on the dividend payment date in an amount equal
to the amount that would have otherwise been received instead
of the Common Stock purchased with the reinvested dividends.
With respect to Common Stock acquired in open market
transactions, a participant will be treated as having received
dividend income in an amount equal to the amount used to
purchase the Common Stock plus the participant's pro rata
amount of any brokerage commissions paid by the Company.
Corporate participants, subject to certain limitations, will be
eligible for the 70% dividends received deduction.
The tax basis of Common Stock credited to a participant's
account will equal the amount treated as dividend income. The
holding period of Common Stock credited to a participant's
account will begin on the day following the date of purchase.
Federal Income Tax Consequences with Regard to Series A
Debentures and Series B Debentures
A participant whose Participating Securities include
Series A Debentures and Series B Debentures will realize
interest income in an amount equal to the fair market value of
the Common Stock purchased by the reinvestment of interest
payments (i.e., the amount that would have otherwise been
received instead of the Common Stock). The participant's pro
rata amount of any brokerage commissions paid by the Company in
open market transactions would be recognized as ordinary
income, not interest income.
The tax basis of Common Stock credited to a participant's
account will equal the fair market value of the Common Stock on
the purchase date plus any pro rata amount of brokerage
commissions taxed to the participant as ordinary income. The
holding period of Common Stock credited to a participant's
account pursuant to the interest reinvestment portion of the
Plan will begin on the day following the date of purchase.
Federal Income Tax Consequences with Regard to Optional Cash
Contributions
Participants who make Optional Cash Contributions will be
treated as having received ordinary income (as a constructive
dividend to such participant) equal to such participant's pro
rata amount of any brokerage commissions paid by the Company in
open market transactions.
The tax basis of Common Stock credited to a participant's
account as a result of Optional Cash Investments is the
purchase price of the Common Stock plus any pro rata amount of
brokerage fees or commissions taxed to the participant as
described above. The holding period of Common Stock acquired
pursuant to Optional Cash Investments will begin on the day
following the date of purchase.
Withholding
In accordance with current United States Treasury
Regulations, security holders must provide the Plan
administrator with their taxpayer identification number or
Social Security number to avoid withholding on dividend and
interest payments and to become eligible to be a Participant in
this Plan.
USE OF PROCEEDS
The net proceeds from the sale of newly issued Common
Stock of the Company pursuant to the Plan will be used for
general corporate purposes of the Company, including
investments in, or extensions of credit to, the banking and
nonbanking subsidiaries of the Company. The Company will not
receive any proceeds with respect to shares of Common Stock
obtained in the open market.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 83 of the Louisiana Business Corporation Law
authorizes and the By-Laws of the Company provide for
indemnification of directors and officers of the Company
against certain liabilities under certain circumstances,
including liabilities under the Securities Act of 1933 (the
"Securities Act"). As permitted by its Articles of
Incorporation, the Company has entered into contracts with its
directors and officers providing for indemnification to the
fullest extent permitted by law. The Company has purchased a
policy of insurance against possible liability under the
Securities Act of its officers and directors.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers, or
persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion
of the Securities and Exchange Commission (the "SEC") such
indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
AVAILABLE INFORMATION
The Company has filed with the SEC a Registration
Statement on Form S-3 (the "Registration Statement") under the
Securities Act with respect to the Common Stock being offered
pursuant to this Prospectus. This Prospectus does not contain
all the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules
and regulations of the SEC. Statements contained herein
concerning the provisions of any documents are not necessarily
complete and, in each instance, reference is made to the copy
of such document filed or incorporated by reference as an
exhibit to the Registration Statement.
The Company is subject to the informational requirements
of the Securities Exchange Act of 1934 (the "Exchange Act") and
in accordance therewith files reports, proxy statements and
other information with the SEC. The Registration Statement, as
well as such reports, proxy statements and other information
filed with the SEC by the Company can be inspected and copied
at the public reference facilities maintained by the SEC at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the regional offices of the SEC at the
following locations: New York Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10048 and Chicago
Regional Office, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material may be obtained from
the Public Reference Section of the SEC at 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. The SEC
maintains a Web site that contains reports, proxy and
information statements and other information regarding
registrants that file electronically with the SEC
(http://www.sec.gov). The Common Stock of the Company is
traded on The Nasdaq Stock Market. Reports, proxy statements
and other information may also be inspected at the offices of
The National Association of Securities Dealers, Inc. at 1735 K
Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed by the
Company with the SEC, are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year
ended December 31, 1996 filed pursuant to Section 13 of the
Exchange Act;
(2) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997;
(3) The Company's Current Report on Form 8-K dated
January 14, 1997;
(4) The Company's Current Report on Form 8-K dated April
11, 1997;
(5) All other reports filed by the Company pursuant to
Section 13 of the Exchange Act since December 31, 1996; and
(6) The description of the Common Stock set forth in Item
1 of the Company's Applications for Registration on Form 8-A
filed on November 9, 1972 and December 22, 1976, as amended by
a Form 8 filed on June 19, 1989, a Form 8-A filed on August 12,
1993, and a Form 8-A/A (No. 2) filed on May 3, 1996.
All documents filed by the Company with the SEC pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment that indicates that
all securities offered have been sold or that deregisters all
securities then remaining unsold shall, except to the extent
otherwise provided by Regulation S-K or any other rule
promulgated by the SEC, be deemed to be incorporated by
reference in this Registration Statement and to be part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other
subsequently filed document that is also incorporated or deemed
to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to
whom this Prospectus is delivered, on the written or oral
request of any such person, a copy of any and all of the
foregoing documents incorporated herein by reference (not
including exhibits to such documents unless such exhibits are
specifically incorporated by reference into such documents).
Requests for such copies should be directed to Investor
Relations, First Commerce Corporation, 201 St. Charles Avenue,
New Orleans, Louisiana 70170, or to Post Office Box 60279, New
Orleans, Louisiana 70160, telephone number (504) 623-2900.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses payable in connection with the proposed
sale of Common Stock covered hereby are as follows:
SEC registration fee.......................................$12,926.14
Printing fees and expenses................................. 30,000.00
Legal fees and expenses.................................... 35,000.00
Accounting fees and expenses............................... 2,500.00
Miscellaneous expenses..................................... 573.86
-----------
Total expenses........................................ 81,000.00
Item 15. Indemnification of Directors and Officers.
Section 83 of the Louisiana Business Corporation Law
provides in part that a corporation may indemnify any director,
officer, employee or agent of the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
connection with any action, suit or proceeding to which he is
or was a party or is threatened to be made a party (including
any action by or in the right of the corporation) if such
action arises out of the fact that he is or was a director,
officer, employee or agent of the corporation and he acted in
good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The indemnification provisions of the Louisiana Business
Corporation Law are not exclusive; however, no corporation may
indemnify any person for willful or intentional misconduct. A
corporation has the power to obtain and maintain insurance, or
to create a form of self-insurance on behalf of any person who
is or was acting for the corporation, regardless of whether the
corporation has the legal authority to indemnify the insured
person against such liability.
Section 11 of the By-Laws of the Company (the
"Indemnification By-Law") provides for mandatory
indemnification for directors and officers or former directors
and officers of the Company to the full extent permitted by
Louisiana law. The right to indemnification provided by the
Indemnification By-Law applies to all covered claims, whether
such claims arose before or after the date that the
Indemnification By-Law was adopted.
As permitted by its Articles of Incorporation, the Company
has entered into contracts with certain of its directors and
officers providing for indemnification to the fullest extent
permitted by law ("Indemnification Contracts"). The rights of
the directors and officers under the Indemnification Contracts
substantially mirror those granted under the Indemnification
By-Law.
The Company maintains an insurance policy covering the
liability of its directors and officers for actions taken in
their official capacity.
The Indemnification Contracts provide that, to the extent
insurance is reasonably available, the Company will maintain
comparable insurance coverage for each contracting party as
long as he or she serves as an officer or director and
thereafter for so long as he or she is subject to possible
personal liability for actions taken in such capacities. The
Indemnification Contracts also provide that if the Company does
not maintain comparable insurance, it will hold harmless and
indemnify a contracting party to the full extent of the
coverage that would otherwise have been provided for his
benefit.
Item 16. Exhibits.
4.1 Restated Articles of Incorporation of the Company.
Incorporated by reference from Exhibit 3.1 to the
Annual Report of the Company on Form 10-K for the
year ended December 31, 1996.
4.2 Amended and Restated By-Laws of the Company.
Incorporated by reference from Exhibit 3.2 to the
Annual Report of the Company on Form 10-K for the
year ended December 31, 1995 (the "1995 Form 10-K").
4.3 Indenture between the Company and Republic Bank
Dallas, N.A., Trustee (trusteeship transferred to The
Bank of New York), including the form of 12 3/4 %
Convertible Debentures due 2000, Series A of the
Company. Incorporated by reference from Exhibit 4.1
to the Annual Report of the Company on Form 10-K for
the year ended December 31, 1985 (the "1985 Form 10-
K").
4.4 Indenture between the Company and Republic Bank
Dallas, N.A., Trustee (trusteeship transferred to The
Bank of New York), including the form of 12 3/4 %
Convertible Debentures due 2000, Series B of the
Company. Incorporated by reference from Exhibit 4.2
to the 1985 Form 10-K.
4.5 Rights Agreement between the Company and First
Chicago Trust Company of New York, as Rights Agent.
Incorporated by reference from Exhibit 4.3 to the
1995 Form 10-K.
4.6 1997 Dividend and Interest Reinvestment and Stock
Purchase Plan of the Company.
5 Opinion of Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P. (included in Exhibit 5).
24 Powers of Attorney pursuant to which this
Registration Statement has been signed on behalf of
certain officers and directors of the Company.
Incorporated by reference from Exhibit 24 to the
Registration Statement of the Company on Form S-8
(Registration No. 333-25711) filed with the
Securities and Exchange Commission on April 23, 1997.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this regis-
tration statement to include any material information with re-
spect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New Orleans, State of Louisiana,
on May 27, 1997.
FIRST COMMERCE CORPORATION
By: /s/ Michael A. Flick
------------------------------
Michael A. Flick
Executive Vice President,
Secretary and Chief Administrative
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
*
- - --------------------------- Director, President and May 27, 1997
Ian Arnof Chief Executive Officer
(Principal Executive Officer)
* Director and Chairman of May 27, 1997
- - --------------------------- the Board
Hermann Moyse, Jr.
/s/ Michael A. Flick Executive Vice President, May 27, 1997
- - --------------------------- Secretary and Chief Administrative
Michael A. Flick Officer (Principal Financial Officer)
* Executive Vice, President,
- - --------------------------- Controller and Principal May 27, 1997
Thomas L. Callicutt, Jr. Accounting Officer
* Director May 27, 1997
- - ----------------------------
James J. Bailey III
* Director May 27, 1997
- - ----------------------------
John W. Barton
* Director May 27, 1997
- - ----------------------------
Sydney J. Besthoff III
* Director May 27, 1997
- - ----------------------------
Robert H. Bolton
* Director May 27, 1997
- - ----------------------------
Robert C. Cudd III
* Director May 27, 1997
- - ----------------------------
Frances B. Davis
* Director May 27, 1997
- - ----------------------------
Laurance Eustis, Jr.
* Director May 27, 1997
- - ----------------------------
William P. Fuller
* Director May 27, 1997
- - ----------------------------
Arthur Hollins III
* Director May 27, 1997
- - ----------------------------
F. Ben James, Jr.
* Director May 27, 1997
- - ----------------------------
Erik F. Johnsen
* Director May 27, 1997
- - ----------------------------
Joseph Merrick Jones, Jr.
Director
- - ----------------------------
Edwin Lupberger
* Director May 27, 1997
- - ----------------------------
Mary Chavanne Martin
* Director May 27, 1997
- - ----------------------------
Hugh G. McDonald, Jr.
* Director May 27, 1997
- - ----------------------------
Saul A. Mintz
* Director May 27, 1997
- - ----------------------------
O. Miles Pollard, Jr.
* Director May 27, 1997
- - ----------------------------
G. Frank Purvis, Jr.
* Director May 27, 1997
- - ----------------------------
Thomas H. Scott
Director
- - ----------------------------
Edward M. Simmons
* Director May 27, 1997
- - ----------------------------
H. Leighton Steward
* Director May 27, 1997
- - ---------------------------
Robert A. Weigle
*By: /s/ Michael A. Flick
---------------------------
Michael A. Flick
Attorney-in-Fact
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Description of Exhibits Page
- - -------- --------------------------- -------
4.1 Restated Articles of Incorporation of the
Company. Incorporated by reference from
Exhibit 3.1 to the Annual Report of the
Company on Form 10-K for the year ended
December 31, 1996.
4.2 Amended and Restated By-Laws of the
Company. Incorporated by reference from
Exhibit 3.2 to the Annual Report of the
Company on Form 10-K for the year ended
December 31, 1995 (the "1995 Form 10-K").
4.3 Indenture between the Company and Republic
Bank Dallas, N.A., Trustee (trusteeship
transferred to The Bank of New York),
including the form of 12 3/4 % Convertible
Debentures due 2000, Series A of the
Company. Incorporated by reference from
Exhibit 4.1 to the Annual Report of the
Company on Form 10-K for the year ended
December 31, 1985 (the "1985 Form 10-K").
4.4 Indenture between the Company and Republic
Bank Dallas, N.A., Trustee (trusteeship
transferred to The Bank of New York),
including the form of 12 3/4 % Convertible
Debentures due 2000, Series B of the
Company. Incorporated by reference from
Exhibit 4.2 to the 1985 Form 10-K.
4.5 Rights Agreement between the Company and
First Chicago Trust Company of New York, as
Rights Agent. Incorporated by reference
from Exhibit 4.3 to the 1995 Form 10-K.
4.6 1997 Dividend and Interest Reinvestment and
Stock Purchase Plan of the Company.
5 Opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.
23.1 Consent of Arthur Andersen LLP.
Sequentially
Exhibit Numbered
Number Description of Exhibits Page
- - ------- ---------------------------- -----
23.2 Consent of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.
(included in Exhibit 5).
24 Powers of Attorney pursuant to which this
Registration Statement has been signed on
behalf of certain officers and directors of
the Company. Incorporated by reference
from Exhibit 24 to the Registration
Statement of the Company on Form S-8
(Registration No. 333-25711) filed with the
Securities and Exchange Commission on April
23, 1997.
FIRST COMMERCE CORPORATION
1997 DIVIDEND AND INTEREST REINVESTMENT AND STOCK PURCHASE PLAN
ARTICLE I
PURPOSE OF THE PLAN
The purpose of the 1997 Dividend and Interest Reinvestment
and Stock Purchase Plan (the "Plan") of First Commerce
Corporation (the "Company") is to provide the record holders
(collectively, "Security Holders") of Company Common Stock, par
value $5.00 per share (the "Common Stock"), the 12 3/4%
Convertible Debentures due 2000, Series A of the Company (the
"Series A Debentures") and the 12 3/4% Convertible Debentures
due 2000, Series B of the Company (the "Series B Debentures")
and any subsequently issued series or classes of stock or debt
instruments as the Company Board of Directors (the "Board") may
designate (collectively, "Securities") with a simple and
convenient way of reinvesting dividend and interest payments
for purposes of acquiring shares of Common Stock at such
shares' current market price, without the payment of brokerage
commissions, fees, service charges or other expenses.
Participants may also contribute up to an additional $150,000
each year (an "Optional Cash Contribution") to the Plan for the
purchase of shares of Common Stock at such shares' current
market price, without the payment of brokerage commissions,
fees, service charges or expenses other than a nominal charge
for processing Optional Cash Contributions by electronic debit.
Capitalized terms in this Plan that are not defined in this
paragraph shall have the meanings given them in Article X
hereof.
ARTICLE II
ENROLLMENT, DEPOSIT, INVESTMENT, AND DIVIDEND
AND INTEREST PAYMENT ELECTIONS
Section 2.1. Enrollment. (a) Any Record Security
Holder may elect to participate in the Plan by completing and
returning to the Administrator a completed enrollment form
designating the Record Securities of such Record Security
Holder that shall be Participating Securities and, if so
desired by such Record Security Holder, submitting for deposit
under the Plan one or more certificates for shares of Common
Stock to the Administrator accompanied by such documentation as
the Administrator may require. Such Person's participation
will be effective immediately upon the Administrator's receipt
of such enrollment form and any other documentation required.
The Administrator shall send to any such Record Security Holder
who deposits shares of Common Stock under the Plan in
connection with enrollment a statement of account as soon as
practicable after such deposit. A Street Name Beneficial Owner
may not participate in the Plan. A Street Name Beneficial
Owner may become a Record Security Holder eligible to
participate in the Plan by obtaining the registration of
Securities in such Person's name. A Participant may at any
time increase or decrease the number or principal amount of
Record Securities that will be Participating Securities by
completing and delivering to the Administrator a revised
enrollment form, and such modification will be effective
immediately upon the Administrator's receipt of such revised
enrollment form. If a Participant elects on an enrollment form
that all Record Securities of such Participant shall be
Participating Securities, all Record Securities subsequently
acquired by such Participant will also be Participating
Securities.
(b) Any Person participating in the Predecessor Plan
as of the date that the Plan becomes effective will be enrolled
in the Plan automatically, without submitting an enrollment
form. All Participating Securities of a Participant under the
Predecessor Plan will automatically be deemed to be
Participating Securities under the Plan and all shares of
Common Stock attributable to a Predecessor Plan Participant
under the Predecessor Plan will automatically be deemed to be
Plan Shares, without regard to whether the Participant submits
certificates for such shares to the Administrator, and, to the
extent any such shares are held by the Predecessor Plan agent
under the terms of the Predecessor Plan, they will be delivered
to the Administrator and credited to the Plan Account of the
applicable Participant.
(c) Any Person who is a transferee of a Participant
may elect to participate in the Plan by submitting an
enrollment form and otherwise complying with the provisions of
Section 4.2.
(d) Notwithstanding the foregoing, the Company and
the Administrator retain the right to reject an enrollment
application of a former Participant whose Plan Account was
terminated pursuant to Section 4.5.
Section 2.2. Optional Deposits of Common Stock. (a)
After the establishment of a Plan Account as provided in
Section 2.1, a Participant may at any time deposit free of
charge shares of Common Stock held in a Record Account over
which such Participant has dispositive authority into such
Participant's existing Plan Account by delivering the
certificates representing such shares and such documentation as
the Administrator may require. The Administrator shall send to
a Participant a statement of account as soon as practicable
after the deposit of shares of Common Stock under the Plan for
such Participant. A Street Name Beneficial Owner may not
deposit shares of Common Stock with the Administrator under the
Plan. A Street Name Beneficial Owner may become a Record
Security Holder eligible to participate in the Plan and thereby
be able to deposit shares of Common Stock with the
Administrator under the Plan by obtaining the registration of
such shares in such Person's name and then following the
procedures set forth in Section 2.1. Nothing contained herein
shall be construed to prohibit any Street Name Beneficial Owner
or Record Security Holder from participating in the direct
registration system for any of the Securities, whereby a Person
may be registered on the books of the Company as the owner of a
Security without the issuance of a certificate or instrument
evidencing such registration or ownership.
(b) A Participant or a Plan applicant delivering
certificates to the Administrator in connection with depositing
shares of Common Stock into such person's existing Plan Account
or a Plan Account to be established for such person is eligible
for insurance free of charge against the loss of such
certificates, provided such person submits such certificates to
the Administrator by first class mail in brown, pre-addressed
envelopes supplied by the Administrator. The maximum
protection provided by such insurance is the lesser of $25,000
or the current market value of the shares of Common Stock
represented by such certificates. Claims for such insurance
must be submitted to the Administrator by a Participant or a
Plan applicant within thirty calendar days after the date that
the subject certificates were mailed to the Administrator, and,
if the claimant is a Plan applicant, such claimant must also
enroll in the Plan in conjunction with the processing of such
person's insurance claim. Any Participant or Plan applicant
who elects to forego such insurance coverage by not following
the aforementioned procedures should nevertheless mail
certificates for shares of Common Stock to be deposited under
the Plan to the Administrator at the address furnished by the
Administrator and obtain from a third party insurance against
the loss of such certificates in an amount equal to the greater
of $20 or the current market value of the shares of Common
Stock represented by such certificates.
Section 2.3. Optional Cash Investments. A Participant
may elect to make an initial Optional Cash Investment upon
enrolling in the Plan by means of a personal check or money
order payable in United States dollars to the Plan
Administrator. Subsequent to enrollment, a Participant may
elect to make occasional or ongoing Optional Cash Investments
in the Plan for the purchase of additional Plan Shares by means
of a cash payment form that is attached to statements of
account prepared by the Administrator for such Participant, or
by electronic debit under Section 2.4 to the Administrator;
provided, however, that any Optional Cash Contributions must be
accompanied by, or in the case of electronic debits, preceded
by, documentation acceptable to the Administrator. Ongoing
Optional Cash Investments by means of a cash payment form may
be made no more frequently than once each calendar week;
ongoing Optional Cash Investments by electronic debit may be
made no more frequently than as set forth in Section 2.4. Any
Participant who elects to make Optional Cash Investments must
invest at least $50 for any single Optional Cash Investment.
In any calendar year, the sum of all Optional Cash Investments
made that year by a Participant shall not exceed $150,000.
Section 2.4. Optional Cash Investments by Electronic
Debit. A Participant may elect to transmit Optional Cash
Contributions for Optional Cash Investments to the
Administrator by means of electronic debit from such
Participant's bank account designated for this purpose,
provided the Participant completes and delivers to the
Administrator a valid and usable Automatic Deduction Form,
which will become effective as promptly as practicable after
receipt thereof by the Administrator. A Participant may any
time thereafter change such election by completing and
delivering a revised valid and usable Automatic Deduction Form,
which will become effective as promptly as practicable after
receipt thereof by the Administrator. Each electronic debit
permitted by this Section 2.4 must be a minimum of $50 in
amount. A Participant making one or more Optional Cash
Investments by electronic debit will be charged by the
Administrator a fee, which will initially be $2, for each such
electronic debit. Such electronic debits may be occasional or
periodic, provided all periodic electronic debits must be made,
at the election of such Participant, in accordance with the
limitations established by the Administrator from time to time.
Until otherwise established by the Administrator, a Participant
may elect that all such periodic electronic debits will be made
on a monthly basis on either the first or the fifteenth day of
each month or on a bi-monthly basis on the first and fifteenth
day of each month: provided that, if any such day is not a
Business Day, such debit will be made on the first Business Day
following such day. Funds provided by an electronic debit will
be used by the Administrator to make Optional Cash Investments
generally on the Investment Date that is within five Business
Days after the date of such debit. In the event that at any
time the designated electronic transfer route or bank account
proves unusable for any reason, the Administrator shall so
advise the Participant of the failed transmission and of the
Administrator's resulting inability to execute the transaction
requested.
Section 2.5. Dividend and Interest Payment Method.
Dividends and Interest paid in respect of all Participating
Securities will be reinvested in shares of Common Stock and
credited as Plan Shares to the appropriate Plan Accounts
pursuant to the provisions of the Plan. Dividends and Interest
paid in respect of a Participant's Securities that are not
Participating Securities shall be paid by means of a check
delivered to such Participant's address of record by first
class mail unless such Participant elects that such Dividends
and Interest be sent by electronic fund transfer to such
Participant's bank account designated for this purpose by
completing and delivering to the Administrator a valid and
usable Automatic Deposit Form. A Participant may change the
designated bank account by completing and delivering a revised
valid and usable Automatic Deposit Form to the Administrator.
In the event that the designated electronic fund transfer route
or bank account identification proves unusable for any reason,
the Administrator shall send a check for the subject Dividend
or Interest by first class mail to the Participant's address of
record with an advice of the failed transmission and of the
resulting inability to execute the deposit of Dividend or
Interest funds.
Section 2.6. Conversion of Securities. Shares of Common
Stock issued to a Participant upon the conversion by such
Participant of convertible Securities shall not be deemed to be
Participating Securities unless such Participant has elected
that all Record Securities of such Participant will be
Participating Securities or unless such Participant submits to
the Administrator a revised enrollment form designating such
shares of Common Stock as Participating Securities.
ARTICLE III
COMMON STOCK PURCHASE PROCEDURES
Section 3.1 Source of Common Stock. All Dividends,
Interest and Optional Cash Contributions shall be invested in
either (i) Directly Issued Common Stock or (ii) in Common Stock
purchased in the Open Market, as determined by the Company.
The Company may not change such determination as to the source
of the shares purchased more than once every three months nor
in the absence of a documented determination by the Board or
the chief financial officer of the Company that the need of the
Company to raise additional capital has changed or that there
is another valid reason for such change, unless counsel for the
Company advises the Company that compliance with such
requirements is no longer necessary or advisable under the
federal securities laws.
Section 3.2. Optional Cash Investments. (a) For an
Investment Date with respect to which the Company elects to
sell Directly Issued Common Stock to the Plan, the Company
shall issue to the Administrator upon the Company's receipt of
the funds described herein an integral number of shares of
Common Stock equal to (i) the amount of Optional Cash
Contributions held by the Administrator on such Investment Date
that do not comprise any Ineligible Funds, divided by (ii) the
Company Purchase Price for such Investment Date. The
Administrator shall credit to the Plan Account of each
investing Participant for such Investment Date the number of
Book Shares that represents the Participant's proportionate
interest, as calculated in the preceding sentence, in the
Common Stock so purchased.
(b) For an Investment Date with respect to which the
Company elects to effect the Optional Cash Investments through
purchases of shares of Common Stock in the Open Market, the
Administrator shall, if it is an Independent Agent, or shall
cause an Independent Agent to, purchase an integral number of
shares of Common Stock in the Open Market equal to (i) the
amount of Optional Cash Contributions held by the Administrator
on such Investment Date that do not comprise any Ineligible
Funds, divided by (ii) the Market Purchase Price with respect
to such Investment Date. The Administrator shall credit to the
Plan Account of each investing Participant for such Investment
Date the number of Book Shares that represents the
Participant's proportionate interest, as calculated in the
preceding sentence, in the Common Stock so purchased.
Section 3.3. Dividend Reinvestment and Interest
Reinvestment. (a) On or before each dividend payment date or
interest payment date for a Security, pursuant to its
established practice, the Company shall remit to the
Administrator the Reinvestment Fund for such dividend payment
date or interest payment date with respect to Participating
Securities to be invested in either (i) Directly Issued Common
Stock or (ii) Common Stock purchased in the Open Market, as
determined by the Company in accordance with Section 3.1.
(b) For a dividend payment date or an interest
payment date with respect to which the Company elects to sell
Directly Issued Common Stock to the Plan to effect a Dividend
Reinvestment or an Interest Reinvestment, the Company shall
issue to the Administrator an integral number of shares of
Common Stock equal to (i) the amount of the Reinvestment Fund
for such dividend payment date or interest payment date that
does not comprise any Ineligible Funds, divided by (ii) the
Company Purchase Price for such dividend payment date or
interest payment date. The Administrator shall credit to the
Plan Account of each Participant with Participating Securities
in regard to which a portion of such Dividend or Interest was
paid the number of Book Shares that represents the subject
Participant's proportionate interest, as calculated in the
preceding sentence, in the Common Stock so purchased.
(c) For a dividend payment date or an interest
payment date with respect to which the Company elects to effect
the Dividend Reinvestment or Interest Reinvestment through
purchases of shares of Common Stock in the Open Market, the
Administrator shall, if it is an Independent Agent, or shall
cause an Independent Agent to, purchase an integral number of
shares of Common Stock in the Open Market equal to (i) the
amount of the Reinvestment Fund for such dividend payment date
or interest payment date that does not comprise any Ineligible
Funds, divided by (ii) the Market Purchase Price with respect
to such dividend payment date or interest payment date. The
Administrator shall credit to the Plan Account of each
Participant with Participating Securities in regard to which a
portion of such Dividend or Interest was paid the number of
Book Shares that represents the Participant's proportionate
interest, as calculated in the preceding sentence, in the
Common Stock so purchased.
ARTICLE IV
SALES, GIFTS, TRANSFERS, AND WITHDRAWALS
Section 4.1. Sales of Plan Shares. A Participant may
request, at any time, that all or a portion of the whole shares
of Common Stock allocable to such Participant's Plan Account be
sold by delivering or making to the Administrator a completed
Transaction Request and, with respect to Plan Shares that are
Certificated Shares, delivering to the Administrator the
certificates representing such Plan Shares and such other
documentation as the Administrator may require. If it is not an
Independent Agent, the Administrator shall forward sale
instructions for such Plan Shares to the Independent Agent.
The Administrator shall, if it is an Independent Agent, or
shall cause an Independent Agent to sell such Plan Shares in
the Open Market as soon as feasible at its discretion on any
one day on which the Common Stock is traded on the Open Market.
The Administrator shall, if it is an Independent Agent, or
shall cause an Independent Agent to sell such Plan Shares
pursuant to the provisions of Section 5.5 and in accordance
with general commercial law, stock transfer requirements, and
federal and state securities laws. Promptly after the
placement of the order to sell such Plan Shares on the Open
Market, the Administrator shall send by first class mail to the
address of record of such Participant a transaction notice for
such sale. As soon as practicable following the receipt of
proceeds from the sale of such Plan Shares but no later than
thirty days after its receipt of the sale Transaction Request,
the Administrator shall send by first class mail to the address
of record of such Participant a statement of account and a
check payable in an amount equal to the total number of such
Plan Shares sold multiplied by the Market Sale Price for such
Plan Shares, less any applicable deductions and withholdings
required by law. Fractional Plan Shares of a Participant may
be sold in accordance with the provisions of Section 4.4 only
if the selling Participant is withdrawing completely from Plan
participation or the provisions of Section 4.5 only if such
Participant's Plan Account is being terminated and such
Participant has elected to sell such Participant's Plan Shares
in connection therewith.
Section 4.2. Transfers of Shares. A Participant may
elect to transfer by gift or private sale to the Plan Account
of another Participant or to the Plan Account to be established
for a Person in conjunction with such transfer (a) any number
of Plan Shares or (b) any number of Certificated Shares that
are not Participating Securities over which the Participant has
dispositive authority. Unless the Administrator is instructed
otherwise, all shares so transferred shall be credited to the
appropriate transferee Plan Account as Book Shares. Fractional
Plan Shares may be transferred from one Plan Account to another
Plan Account only if the transferor Participant is withdrawing
completely from Plan participation. Such transfer may be
effected by the Participant by delivering to the Administrator
a completed Transaction Request, any necessary transferee
enrollment form, certificates for any Certificated Shares being
transferred and any other documentation as the Administrator
may require. As soon as possible after such transfer, the
Administrator shall send by first class mail a statement of
account to each transferor and transferee for such transaction.
If the transferee is already a Participant as of the date on
which Plan Shares are credited under this Section 4.2 to such
Participant's Plan Account, the payment of Dividends allocable
to such transferred Plan Shares shall be made according to the
instructions previously provided by the transferee for such
Participant's Plan Account. If the transferee is not already a
Participant as of the date on which Plan Shares are credited
under this Section 4.2 to such Participant's Plan Account, the
Administrator shall open a Plan Account in the name of the
transferee using the information provided by the transferee in
such Person's enrollment form, and the Administrator shall send
the transferee a Prospectus and any related documentation as
soon as reasonably practicable, whereupon the transferee will
be eligible to submit Optional Cash Contributions to the Plan.
Section 4.3. Classification of Record Shares. If a
Participant has elected that a portion, but not all, of such
Participant's Record Shares shall be Participating Securities
and such Participant subsequently sells, gives, or transfers
fewer than all such Participant's Record Shares, non-
Participating Securities will be deemed to have been sold,
given, or transferred prior to any Participating Securities,
unless such Participant instructs the Administrator otherwise.
Section 4.4. Withdrawal from Plan Participation. If a
Participant elects to withdraw partially or completely from
Plan participation, the Administrator shall transfer or
reclassify all whole shares of Common Stock allocable to such
Participant's Plan Account and subject to such election to a
Record Account for such Participant. The Administrator shall
send by first class mail a statement of account and any
certificates for such whole shares of Common Stock to such
Participant's address of record as soon as practicable, but in
no event later than thirty days after receipt of such
Participant's election. In connection with any such request to
withdraw from Plan participation, any fractional Plan Share
will be sold in the open market as soon as practicable after
the Administrator receives such Participant's election. As
soon as practicable, but in no event later than thirty days
after the receipt of such Participant's election, the
Administrator shall also send by first class mail to the
address of record of such Participant a check payable in an
amount equal to a proration of the Market Sales Price
applicable to such fractional Plan Share, less any applicable
deductions and withholdings required by law; provided, however,
that a Participant will not be charged any Administrator
processing fee if whole Plan Shares of such Participant are not
sold in connection therewith. In the event, however, that the
Participant requests to sell or transfer all or a portion of
the Common Stock allocable to such Participant's Plan Account
upon withdrawal from the Plan, the relevant provisions of
Sections 4.1 and 4.2 will apply to such sales or transfers,
respectively. In the event that the Administrator receives
such Participant's election to withdraw on or after the
dividend record date or interest record date for a Dividend or
Interest payment but prior to the dividend payment date or
interest payment date with respect thereto, the Administrator
may, in its sole discretion, either reinvest such Dividend or
Interest in shares of Common Stock for the benefit of such
Participant prior to processing such withdrawal or pay such
Dividend or Interest to such Participant by means of a check
delivered to such Participant's address of record by first
class mail.
Section 4.5. Termination of Plan Participation. The
Company or the Administrator may, in their discretion,
terminate a Participant's participation in the Plan at any time
and will do so if a Participant's continued participation is
not considered to be in the best interests of the Company. The
objective of the Plan is to encourage long-term investment by
allowing Security Holders to accumulate Common Stock over a
long period of time, thus providing benefits to Security
Holders and the Company. Excessive activity in a Participant's
account does not serve this objective and may cause the Company
or the Administrator to terminate the eligibility of a
Participant and such Participant's Plan Account. The Company
or the Administrator may terminate a Participant's Plan Account
by sending by first class mail to the address of record of such
Participant written notice of termination. In connection
therewith, the Administrator shall transfer or reclassify all
whole shares of Common Stock allocable to such Participant's
Plan Account to a Record Account for such Participant. The
Administrator shall send by first class mail a statement of
account and any certificates for such whole shares of Common
Stock to such Participant's address of record within thirty
days of such termination. In connection with any such
termination, any fractional Plan Share will be sold in the open
market as soon as practicable after the date of such
termination. As soon as practicable, but in no event later
than thirty days after such termination, the Administrator
shall also send by first class mail to the address of record of
such Participant a check payable in an amount equal to a
proration of the Market Sales Price applicable to such
fractional Plan Share, less any applicable deductions and
withholdings required by law; provided, however, that a
Participant will not be charged any Administrator processing
fee if whole Plan Shares of such Participant are not sold in
connection therewith. In the event, however, that the
Participant requests to sell or transfer all or a portion of
the Common Stock allocable to such Participant's Plan Account
upon such termination, the relevant provisions of Sections 4.1
and 4.2 will apply to such sales or transfers, respectively.
Section 4.6. Pledge of Plan Shares. A Participant may
not pledge Book Shares until such Participant has obtained from
the Administrator one or more certificates for such shares of
Common Stock pursuant to the provisions of Section 5.7. All
Plan Shares pledged by a Participant shall continue to be
Participating Securities, unless such Participant instructs the
Administrator otherwise.
ARTICLE V
INVESTMENT PROCEDURES AND ACCOUNTING
Section 5.1. Registration of Common Stock Under the Plan.
All shares of Common Stock purchased by the Administrator for
the Plan shall be registered on the stock records of the
Company in the name of the nominee of the Administrator. A
Participant may at any time submit Certificated Shares for
safekeeping by the Administrator. The certificates
representing such Certificated Shares shall be cancelled, and
such shares shall be credited to such Participant's Plan
Account as Book Shares. Any remaining Certificated Shares of
such Participant that are also Participating Securities shall
remain registered on the Company's shareholder records in the
name of the Participant.
Section 5.2. Commingling of Assets. For the purpose of
making, or causing to be made, purchases and sales of Common
Stock for the Plan, the Independent Agent shall be entitled to
commingle each Participant's funds or the Common Stock held on
behalf of a Participant with the funds or Common Stock,
respectively, held on behalf of all other Participants.
Section 5.3. Statement of Account. The Administrator
shall send to each Participant a statement of account as soon
as practicable after any purchase of shares of Common Stock
under the Plan for such Participant. Such statements of account
shall be in addition to other statements of account to be
delivered pursuant to the provisions of other sections of this
Plan. A Participant may also request from the Administrator
duplicate statements of account. A Participant making such
request shall be charged by the Administrator a fee, which will
initially be $5, for each such statement of account that is two
or more years old, not to exceed a certain amount, which will
initially be $25, for a single request for statements covering
more than one year.
Section 5.4. Stock Splits, In-Kind Distributions, and
Rights Offerings. Any shares of Common Stock distributed as an
in-kind distribution or stock split on Plan Shares shall be
credited as Book Shares to the Plan Accounts of the respective
Participants in proportion to the Plan Shares held in such
Participants' Plan Accounts, respectively. Any rights
distributed in respect of the Common Stock that are deemed to
be attached to the Common Stock shall attach to all Plan
Shares, including fractional Book Shares, and shall be
allocated to the Plan Accounts of the respective Participants
in proportion to the Plan Shares held in such Participants'
Plan Accounts, respectively, and shall be held in the same form
as the Certificated Shares or Book Shares as to which such
rights relate, respectively. All communications in respect of
such rights shall be distributed to the Participants pursuant
to Section 6.2 hereof. To exercise any such rights attached to
any Book Shares credited to the Plan Account of any
Participant, such Participant must first request certificates
pursuant to Section 5.7 for the Plan Shares associated with
such rights and then exercise the rights in accordance with the
procedures for Record Security Holders applicable to such
rights.
Section 5.5. Timing of Investments and Sales. (a) The
Administrator shall, if it is an Independent Agent, or shall
cause an Independent Agent to sell Common Stock allocable to
any Plan Account as soon as practicable following the
Administrator's receipt of a direction from a Participant to do
so, except when deferral is necessary under applicable federal
or state securities laws or regulations.
(b) The Administrator shall, if it is an Independent
Agent, or shall arrange with the Independent Agent to purchase
Common Stock for the Plan at least once each calendar week if
there are any outstanding Optional Cash Contributions not yet
invested. The Administrator shall arrange for purchase of
Common Stock with a Reinvestment Fund no later than thirty days
after the relevant dividend payment date or interest payment
date, and, for Optional Cash Contributions, no later than
thirty-five days after the Administrator's receipt thereof,
except in each case when deferral is necessary to comply with
applicable federal or state securities laws or regulations.
Any Dividends or Interest not invested in Common Stock within
thirty days of the relevant dividend payment date or interest
payment date and any Optional Cash Contributions not invested
in Common Stock within thirty-five days after receipt thereof
by the Administrator shall be promptly returned by first class
mail to the address of record of each relevant Participant. No
interest shall be paid on Dividends, Interest, or Optional Cash
Contributions held pending investment or return to the relevant
Participant.
Section 5.6. Timely Receipt of Instructions. (1) If
prior to a scheduled Investment Date the Administrator receives
from a Participant an instruction not to invest all or any
portion of an Optional Cash Contribution previously delivered
by such Participant to the Administrator, such Optional Cash
Contribution will not be invested in Common Stock and will be
returned by first class mail to the address of record of such
Participant as soon as practicable but no later than thirty-
five days after receipt thereof by the Administrator.
(2) If on or before a Record Date the Administrator
receives from a Participant instructions to change a Dividend
or Interest payment method for such Participant, the revised
payment method will be implemented beginning with such Record
Date.
(3) If the Administrator receives from a Participant
instructions to transfer Plan Shares of such Participant on or
after an Ex-Dividend Date but before the related dividend
payment date, or if a transfer occurs on or after an Ex-
Dividend Date but before the related dividend payment date, any
such transfer shall be processed without Dividend rights to the
transferee of such Plan Shares. As soon as practicable
following the receipt of the Dividend allocable to such Plan
Shares, the Administrator shall reinvest the Dividend for the
benefit of the transferor Participant and, if the transferor
Participant has withdrawn from Plan participation, the Plan
Shares so purchased with the Dividend shall be sold in
accordance with the provision of Section 4.1 of the Plan for
the benefit of the transferor Participant.
Section 5.7. Requests for Certificates. A Participant
may, at any time or from time to time, submit a Transaction
Request to receive one or more certificates for all or a
portion of such Participant's whole Book Shares. Such shares
of Common Stock shall remain Plan Shares. Certificates for
such shares of Common Stock will be delivered to such
Participant's address of record within thirty days of receipt
of such Transaction Request.
Section 5.8. Fractional Plan Shares. Fractional Plan
Shares shall be recorded as Book Shares. Fractional Plan
Shares will not have voting rights but will accrue Dividends on
a proportionate basis. Fractional Plan Shares of a Participant
will not be liquidated except upon complete withdrawal by such
Participant from the Plan or the termination of the Plan.
Section 5.9. Company Participation. If a Participant
should deliver an Optional Cash Contribution to the Company,
the Company must transmit it to the Administrator by the
opening of business on the next Business Day if such Optional
Cash Contribution is received by noon or by noon of the next
Business Day if such Optional Cash Contribution is received
after noon.
ARTICLE VI
PARTICIPANTS AS SHAREHOLDERS
Section 6.1. Shareholders. A Participant shall be
recognized as a shareholder of Common Stock for purposes of
admission to the Company's shareholder meetings, voting and
disposing of the shares of Common Stock allocable to such
Participant's Plan Account and the communications that the
Company may from time to time send to its shareholders,
provided (a) the Participant so recognized has not alienated
the voting or dispositive authority over the shares of Common
Stock allocable to such Participant's Plan Account, other than
pursuant to a valid proxy solicitation, and (b) either the
Company's stock records or the Plan records of the
Administrator contain the name and address of such Participant.
Section 6.2. Communications and Voting. The Company
shall send or forward to each Participant Common Stock proxy
solicitation materials and other general Company shareholder
written communications, consent solicitation materials, or
rights offering materials or notices. A Participant shall have
the exclusive right to exercise all voting rights respecting
such Participant's Plan Shares and may vote such Participant's
Plan Shares in person or by proxy; provided, however, a
Participant shall have no voting rights with respect to any
fractional Plan Shares allocable to such Participant's Plan
Account. Shares of Common Stock allocable to a Participant's
Plan Account shall not be voted unless such Participant or such
Participant's proxy votes them.
Section 6.3. Solicitation. Solicitation of the exercise
of Participants' voting rights by the management of the Company
and other persons under a proxy or consent provision applicable
to all beneficial holders of Common Stock shall be permitted.
Solicitation of the exercise of Participant's tender offer or
exchange offer rights by the management of the Company and
other persons shall also be permitted. The Administrator shall
notify Participants of each occasion for the exercise of their
voting rights or rights with respect to a tender offer or
exchange offer within a reasonable time before such rights must
be exercised. Such notification shall include all information
distributed by the Company to Record Security Holders regarding
the exercise of such rights.
ARTICLE VII
PLAN ADMINISTRATION
Section 7.1. Costs. Costs of mailings, materials, and
other administration of the Plan shall be paid by the Company;
provided, however, that brokerage commissions, applicable
taxes, and direct Plan fees, charges, and expenses incurred in
connection with Common Stock sales transactions under the Plan
shall be borne by the Participants as specified in Section 4.1
and disclosed in the Prospectus.
Section 7.2. Control of Transactions. With regard to
Open Market purchases and sales of Common Stock, neither the
Company nor the Administrator, unless it is serving as the
Independent Agent, shall have any authority to direct the time
or price at which Plan Shares may be purchased or sold, the
amount of such shares to be included in a transaction, the
markets on which such shares are to be purchased or sold, or
the selection of the broker or dealer, other than the selection
of the Independent Agent by the appropriate party, through or
from whom transactions may be made, except that such
transactions shall be made in accordance with the terms and
conditions of the Plan. The Company may perform only purely
clerical and ministerial functions in connection with
Securities transactions under the Plan and the administration
of the Plan. Purchases and sales of Common Stock on the Open
Market pursuant to the Plan may be executed upon the terms and
subject to the conditions respecting price and delivery as the
Administrator, if it is an Independent Agent, or the
Independent Agent determines to be appropriate.
Section 7.3. Modification and Termination of the Plan by
the Company. The Company may at any time and from time to
time, at its sole option, modify, amend or terminate the Plan,
in whole, in part or in respect of Participants in one or more
jurisdictions; provided, however, no such amendment shall
result in a distribution to the Company of any Plan Shares or
cash credited to the Plan Account of any Participant. Upon
complete termination of the Plan, the Plan Accounts of all
Participants or, upon the partial termination of the Plan, the
Plan Accounts of all affected Participants, shall be converted,
respectively, to Record Accounts. The Administrator shall send
by first class mail to the address of record of each affected
Participant prior written notice of such Plan or Plan Account
termination and of the conversion of Plan Accounts to Record
Accounts. The fractional Plan Shares of each such Participant
will be liquidated at a cash value in an amount equal to a
proration of the Company Purchase Price as of the effective
date of such termination, less applicable deductions and
withholdings required by law. As soon as practicable, but no
later than thirty days after such effective date of
termination, the Administrator shall mail by first class mail
to the address of record of each such Participant a check
payable in an amount equal to the cash value of such
Participant's fractional Plan Share.
Section 7.4. Sale Upon Plan Termination or Plan Account
Termination. In the event that a Participant notifies the
Administrator of such Participant's desire to sell or transfer
all or a portion of the Common Stock allocable to such
Participant's Plan Account upon the Company's termination of
the Plan or of such Participant's Plan Account, such sales or
transfers shall be effected pursuant to the relevant provisions
of Article IV.
ARTICLE VIII
SELECTION AND ROLE OF ADMINISTRATOR AND INDEPENDENT AGENT
Section 8.1. Selection of an Administrator. The
Administrator shall be appointed by the Company, which
appointment may be revoked by the Company at any time. The
Administrator may resign at any time upon 120 days' notice to
the Company. The Company shall make such arrangements
regarding compensation of the Administrator and reimbursement
of expenses as is deemed reasonable and appropriate.
Section 8.2. Authority and Duties of Administrator. The
Administrator shall have the authority and responsibility to
control and to manage the aspects of the operation and
administration of the Plan that are assigned herein as its
responsibility and such other aspects of operation and
administration of the Plan as may be determined by the Company
from time to time. The Administrator shall have the power and
the duty to take all actions and to make all decisions
necessary or proper to carry out its responsibilities under the
Plan. Notwithstanding any other provision of this Plan, the
Administrator shall not be liable for its inability to buy or
to sell Common Stock on behalf of the Plan as a result of the
closing of one or more of the markets on which the Common Stock
is traded.
Section 8.3. Selection of Independent Agent. If the
Administrator is not eligible under the provisions of this Plan
to serve as the Independent Agent, the Administrator shall
select the Independent Agent to serve in such capacity pursuant
to the Plan. The Administrator shall make arrangements and
enter into agreements with the Independent Agent in connection
with the activities contemplated by the Plan.
Section 8.4. Authority and Duties of Independent Agent.
The Independent Agent shall have the authority and
responsibility to control and to manage the aspects of the
operation and administration of the Plan that are assigned
herein as its responsibility and such other aspects of
operation and administration of the Plan as may be determined
by the Administrator from time to time. The Independent Agent
shall have the power and the duty to take all actions and to
make all decisions necessary or proper to carry out its
responsibilities under the Plan.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Governing Law. This Plan shall be
construed, regulated and administered under the laws of the
State of Louisiana.
Section 9.2. Agreement by Participants. Each
Participant, as a condition of participation herein, for
himself, his heirs, devisees, legatees, executors,
administrators, legal representatives and assigns, approves and
agrees to be bound by the provisions of this Plan and any
subsequent amendments hereto and all actions of the Company,
the Administrator, and the Independent Agent hereunder.
Section 9.3. Headings. The headings and subheadings in
this Plan are inserted for convenience and reference only and
are not to be used in construing the Plan or any provision
thereof.
Section 9.4. Absence of Guarantee. Neither the Company
nor the Administrator guarantees the Plan or Plan Participants
against loss or depreciation. Neither the Company nor the
Administrator guarantees the payment or amount of any future
Dividends or Interest on Securities. Unless otherwise provided
by law, the Company, its directors, officers, employees, and
agents, the Administrator, and the Independent Agent shall in
no manner be liable to any Participant with respect to the
price or performance of the Common Stock held for the Plan.
Section 9.5. Liability. The Company, its directors,
officers, employees, and agents, the Administrator, and the
Independent Agent shall not be liable under the Plan for any
act performed in good faith or for any good faith omission to
act including, without limitation, any claims for liability (a)
arising out of failure to terminate a Plan Account upon a
Participant's death absent valid transfer instructions
pertaining to the Common Stock allocable to the subject Plan
Account and (b) the price at which Common Stock is purchased or
sold for Plan Accounts and the time such purchases or sales are
made.
Section 9.6. No Assignment. A Participant who desires to
assign or pledge Book Shares must first request certificates
for such shares pursuant to Section 5.7 hereof.
ARTICLE X
DEFINITIONS
For all purposes of this Plan, the following terms shall
have the meanings indicated.
Administrator: The term "Administrator" shall mean the
bank, trust company or other entity appointed from time to time
by the Company to act as the administrator of the Plan and as
custodian for the Common Stock purchased for the Plan, the Plan
Shares held for Participants, and all funds received for
investment under the Plan. Until otherwise determined by the
Company, the Administrator shall be First Chicago Trust Company
of New York.
Automatic Deduction Form: The term "Automatic Deduction
Form" shall mean the documentation that the Administrator shall
require to be completed and received prior to taking electronic
debits from a bank account.
Automatic Deposit Form: The term "Automatic Deposit Form"
shall mean the documentation that the Administrator shall
require to be completed and received prior to making electronic
credits to a bank account.
Book Shares: The term "Book Shares" shall mean a
Participant's proportionate interest in the shares of Common
Stock held in nominee name by the Administrator for the Plan,
as to which the Participant's ownership is evidenced solely by
book entry in Plan records, and not by any certificate.
Business Day: The term "Business Day" shall mean any
weekday on which the Administrator conducts normal business
operations, exclusive of federal banking holidays.
Certificated Share: The term "Certificated Share" shall
mean a share of Common Stock for which a valid certificate is
outstanding.
Company Purchase Price: The term "Company Purchase Price"
shall mean with respect to a share of Common Stock the average
of the high and low per share sales prices of Common Stock, as
reported on The Nasdaq Stock Market for the date in question
or, if there is no reported sale on such date, on the last
preceding day on which any reported sale of Common Stock
occurred. With respect to the Company Purchase Price, the date
in question shall be the relevant Investment Date for Optional
Cash Investments in Directly Issued Common Stock, the relevant
dividend payment date for Dividend Reinvestments in Directly
Issued Common Stock, and the relevant interest payment date for
Interest Reinvestments in Directly Issued Common Stock.
Directly Issued Common Stock: The term "Directly Issued
Common Stock" shall mean shares of Common Stock sold directly
by the Company under the Plan and shall exclude Common Stock
purchased in the Open Market.
Dividend: The term "Dividend" shall mean cash dividends
paid on Securities.
Dividend Reinvestment: The term "Dividend Reinvestment"
shall mean the purchase of Common Stock with the Dividends on
Participating Securities received by the Administrator for
credit as Plan Shares.
Exchange Act: The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended from time to time,
and the rules and regulations promulgated thereunder.
Ex-Dividend Date: The term "Ex-Dividend Date" shall mean
the date as of which The Nasdaq Stock Market lists the Common
Stock as being subject to transfer without dividend rights to
the transferee.
Independent Agent: The term "Independent Agent" shall mean
an agent independent of the Company that satisfies applicable
legal requirements, including without limitation the
requirements of Regulation M and Rule 10b-18 promulgated under
the Exchange Act, and who, in the absence of the eligibility of
the Administrator to serve as such, has been selected by the
Administrator pursuant to Section 8.3 hereof to serve as an
independent agent for purposes of making Open Market purchases
and sales of Common Stock for the Plan. Unless ineligible
hereunder, the Administrator shall be the Independent Agent.
Ineligible Funds: The term "Ineligible Funds" shall mean,
as of any date with respect to any Optional Cash Contributions,
Dividends, and Interest received or held by the Administrator
from or on behalf of any Participant, any portion of such funds
that the Administrator is required to return to such
Participant pursuant to Section 5.5 or Section 5.6 hereof as of
such date.
Interest: The term "Interest" shall mean interest payments
made on Securities.
Interest Reinvestment: The term "Interest Reinvestment"
shall mean the purchase of Common Stock with the Interest on
Participating Securities received by the Administrator for
credit as Plan Shares.
Investment Date: The term "Investment Date" shall mean the
date in each calendar week selected by the Administrator or by
the Independent Agent as of which shares of Common Stock are
purchased or begun to be purchased for the Plan with Optional
Cash Contributions, either in the Open Market or as Directly
Issued Common Stock.
Market Purchase Price: The term "Market Purchase Price"
shall mean with respect to a share of Common Stock purchased on
the Open Market in connection with an Investment Date, a
dividend payment date with respect to a Security, or an
interest payment date with respect to a security, the weighted
average price per share of all shares of Common Stock purchased
on the Open Market under the Plan in connection with such
Investment Date, dividend payment date, or interest payment
date, respectively, without deduction for charges, expenses,
fees, and commissions directly incurred in connection with such
purchases.
Market Sale Price: The term "Market Sale Price" shall mean
with respect to a share of Common Stock sold in the Open Market
on a particular date the weighted average price per share of
all shares of Common Stock sold in the Open Market under the
Plan on such date after deduction for the Administrator's
processing fee, which will initially be $15, for each
transaction request by a Participant and the weighted average
per share amount of brokerage commissions and any other costs
directly incurred in connection with such sales.
Open Market: The term "Open Market" shall mean any
securities exchange on which the Common Stock is traded, the
over-the-counter market, or negotiated transactions, excluding
transactions with the Company or its affiliates.
Optional Cash Investment: The term "Optional Cash
Investment" shall mean the voluntary purchase by a Participant
of shares of Common Stock under the Plan with Optional Cash
Contributions.
Participant: The term "Participant" shall mean (a) any
person who has met the requirements of Section 2.1 regarding
enrollment and investment and has not revoked such elections,
and (b) any Person participating in the Predecessor Plan as of
the date that the Plan first becomes effective, unless such
Person has timely delivered the notification referred to in
Section 2.1(b) hereof.
Participating Securities: The Securities of a Participant,
whether held in a Record Account or a Plan Account, the
Dividends or Interest payable in respect of which have been
designated by such Participant on an enrollment form to be
reinvested under the Plan or the Predecessor Plan. All Book
Shares of a Participant shall be Participating Securities.
Person: The term "Person" shall mean any individual,
corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, estate or
unincorporated organization.
Plan Account: The term "Plan Account" shall mean, as to
any Participant, the account maintained by the Administrator
recording such Participant's Plan Shares and any cash held by
the Administrator pending investment or return to such
Participant.
Plan Shares: The term "Plan Shares" shall mean, as to any
Participant, (a) the Certificated Shares held in such
Participant's name on the stock records of the Company and
credited to such Participant's Plan Account as Participating
Securities and (b) the Book Shares held in such Participant's
Plan Account.
Predecessor Plan: The term "Predecessor Plan" shall mean
the Dividend and Interest Reinvestment and Stock Purchase Plan
adopted by the Company in 1987.
Prospectus: The term "Prospectus" shall mean the
prospectus for the offering of shares of Common Stock under the
Plan filed by the Company under the Securities Act of 1933, as
it may be amended from time to time.
Record Account: The term "Record Account" shall mean any
Security Holder account on the Company's securities records
reflecting Securities ownership, excluding all Plan Accounts.
Record Date: The term "Record Date" shall mean the date
established by the Company's Board of Directors to determine
Record Security Holders and Plan Participants for the purpose
designated by the Board of Directors at the time.
Record Securities: The term "Record Securities" shall mean
all Securities credited to a Record Account.
Record Security Holder: The term "Record Security Holder"
shall mean the Person whose name and taxpayer identification or
social security number, where applicable, are recorded in a
Record Account.
Reinvestment Fund: The term "Reinvestment Fund" shall mean
the total amount of Dividends or Interest allocable to
Participating Securities for a given dividend payment date or
interest payment date, respectively, less applicable
withholdings and deductions required by law, and paid by the
Company to the Administrator with respect to such Participating
Securities.
Street Name Beneficial Owner: The term "Street Name
Beneficial Owner" shall mean any Person other than a
Participant who has voting or dispositive authority over
Securities registered on the Company's securities records, not
in such Person's name, but in the name of a third party bank,
broker, nominee, or trustee.
Transaction Request: The term "Transaction Request" shall
mean the instructions and documentation that the Administrator
shall require to be completed and received prior to a
Participant's sale, gift, or transfer of Plan Shares, the
provision of certificates, or withdrawal from Plan
participation. The term shall include electronic and voice
transaction requests acceptable to the Administrator wherein
the Participant supplies the Administrator with such
Participant's Plan account number and personal identification
number.
J ones, W alker
W aechter, Poitevent
Carrere & Denegre, L.L.P.
May 27, 1997
First Commerce Corporation
201 St. Charles Avenue
New Orleans, Louisiana 70170
Gentlemen:
We have acted as counsel for First
Commerce Corporation, a Louisiana corporation
(the "Company"), in connection with the
preparation of a Registration Statement on Form
S-3 (the "Registration Statement") to be filed
by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the
offering by the Company of up to 1,000,000
shares (the "Shares") of common stock, $5.00
par value ("Common Stock"), pursuant to the
terms of the 1997 Dividend and Interest
Reinvestment and Stock Purchase Plan (the
"Plan") of the Company.
Based upon the foregoing and upon our
examination of such matters as we deem
necessary to furnish this opinion, we are of
the opinion that such of the Shares that
represent unissued shares of Common Stock to be
offered and sold pursuant to the terms of the
Plan have been duly authorized and, when issued
and sold for not less than par value upon the
terms described in the Plan and the
Registration Statement, will be validly issued
and outstanding, fully paid and nonassessable.
We consent to the filing of this opinion
as an exhibit to the Registration Statement.
Very truly yours,
JONES, WALKER, WAECHTER,
POITEVENT, CARRERE & DENEGRE, L.L.P.
By: /s/ Margaret F. Murphy
-----------------------------
Margaret F. Murphy, Partner
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation in this Registration Statement of First
Commerce Corporation (the "Company") on Form S-3 of our report
dated January 10, 1997, on our examination of the consolidated
financial statements of the Company and its subsidiaries as of
December 31, 1996 and 1995, and for the years ended December
31, 1996, 1995 and 1994, by reference from the Annual Report of
the Company on Form 10-K for the year ended December 31, 1996.
/s/ ARTHUR ANDERSEN LLP
___________________________________
ARTHUR ANDERSEN LLP
New Orleans, Louisiana,
May 27, 1997
