<PAGE> 1
As filed with the Securities and Exchange Commission on February 14, 1995
Registration No. 33 - ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FIRST TENNESSEE NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
TENNESSEE 6021 62-0803242
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
165 MADISON AVENUE
MEMPHIS, TENNESSEE 38103
(901) 523-4444
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
HARRY A. JOHNSON, III
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
FIRST TENNESSEE NATIONAL CORPORATION
165 MADISON AVENUE
MEMPHIS, TENNESSEE 38103
(901) 523-5624
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With Copies to:
CLYDE A. BILLINGS, JR.
VICE PRESIDENT AND COUNSEL
FIRST TENNESSEE NATIONAL CORPORATION
165 MADISON AVENUE
MEMPHIS, TENNESSEE 38103
(901) 523-5679
Approximate date of commencement of proposed sale of the securities to
the public: From time to time after this Registration Statement becomes
effective and pursuant to the terms of the Registration Rights Agreement dated
as of January 3, 1995.
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. [X].
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each Amount to be Proposed maximum Proposed maximum Amount of
class of registered offering price aggregate registration fee
securities to per unit (1) offering price (1)
be registered (1)
<S> <C> <C> <C> <C>
Common Stock 841,341 $40.38 $33,973,350 $11,715
and Associated
Rights
</TABLE>
(1) Calculated pursuant to Rule 457(c), based on the average of the high and
low prices reported on the Nasdaq Stock Market for Registrant's stock on
February 8, 1995.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE> 2
PROSPECTUS
FIRST TENNESSEE NATIONAL CORPORATION
841,341 SHARES OF COMMON STOCK
This Prospectus relates to 841,341 shares of the common stock, $2.50 par
value per share ("Common Stock") and associated rights of First Tennessee
National Corporation ("FTNC"). The 841,341 shares of Common Stock and
associated rights that are offered for resale hereby are collectively referred
to as the "Shares." The Shares may be offered by certain shareholders of FTNC
(the "Selling Shareholders") from time to time in transactions in the
over-the-counter market, in negotiated transactions or a combination of such
methods of sale, at fixed prices which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Selling Shareholders may effect such
transactions by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions
or commissions from the Selling Shareholders and/or the purchasers of the
Shares for whom such broker-dealers may act as agents or to whom they sell as
principals, or both (which compensation as to a particular broker-dealer might
be in excess of customary commissions). The Shares may be sold pursuant either
to this Prospectus or pursuant to Rules 145 and 144 promulgated under the
Securities Act of 1933, as amended. See "Selling Shareholders" and "Sale of the
Shares."
The Selling Shareholders listed in the table on page 4 acquired the Shares
in connection with the acquisition of Carl I. Brown and Company ("CIB") by
First Tennessee Bank National Association, the principal banking subsidiary of
FTNC, on January 3, 1995, and the Shares are offered hereby pursuant to a
Registration Rights Agreement by and among FTNC and the Selling Shareholders
dated as of January 3, 1995.
None of the proceeds from the sale of the Shares by the Selling
Shareholders will be received by FTNC. FTNC will bear all expenses (other than
selling commissions and fees) in connection with the registration and sale of
the Shares being offered by the Selling Shareholders.
The outstanding shares of Common Stock are included for quotation on the
Nasdaq Stock Market. The last reported sale price of FTNC Common Stock on the
Nasdaq Stock Market on its National Market on _________ __, 1995 was $______
per share.
THE SHARES OF FTNC COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS,
DEPOSITS OR OTHER OBLIGATIONS OF A BANK OR SAVINGS ASSOCIATION AND ARE NOT
INSURED BY THE BANK INSURANCE FUND OR THE SAVINGS ASSOCIATION INSURANCE FUND OF
THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE HEREIN CONTAINED
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY FTNC OR THE SELLING SHAREHOLDERS. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF ANY OFFER
TO BUY, THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM
IT IS UNLAWFUL TO MAKE AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF FTNC SINCE THE
DATE HEREOF.
----------------------------------
THE DATE OF THIS PROSPECTUS IS ___________, 1995
<PAGE> 3
AVAILABLE INFORMATION
FTNC is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC"). Copies of such reports, proxy
statements and other information can be obtained, upon payment of prescribed
fees, from the SEC at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C.
20549. In addition, such reports, proxy statements and other information can
be inspected at the SEC's facilities referred to above and at the SEC's
Regional Offices at 7 World Trade Center, Suite 1300, New York, New York 10048
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. The FTNC Common Stock is included for quotation on the Nasdaq Stock
Market and such reports, proxy statements and other information concerning FTNC
should be available for inspection and copying at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006. This Prospectus is part of a Registration Statement filed and effective
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the shares of Common Stock and associated rights to be issued. This
Prospectus does not contain all the information set forth in the Registration
Statement. Such additional information may be obtained from the SEC's
principal office in Washington, D.C. Statements contained in this Prospectus
or in any document incorporated by reference in this Prospectus as to the
contents of any contract or other document referred to herein or therein are
not necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to the Registration
Statement or such other document, each such statement being qualified in all
respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC are hereby incorporated by
reference in this Prospectus and made a part hereof: (a) FTNC's Current Report
on Form 8-K filed October 18, 1993; (b) FTNC's Annual Report on Form 10-K for
the year ended December 31, 1993 and its Forms 10-K/A filed April 27 and June
29, 1994, amending its Form 10-K; (c) FTNC's Quarterly Reports on Form 10-Q for
the quarters ended March 31, June 30, and September 30, 1994 and its Form
10-Q/A filed August 19, 1994 amending its Form 10-Q for the quarter ended March
31, 1994. (d) FTNC's proxy statement dated March 14, 1994, exclusive of the
Board Compensation Committee Report and the Total Shareholder Return
Performance Graph on pages 11-16 thereof; (e) the description of FTNC Common
Stock contained in FTNC's registration statement on Form 10, filed April 14,
1970, pursuant to Section 12 of the Exchange Act (and any amendments or reports
filed for the purpose of updating the description); (f) the description of
FTNC's rights to purchase participating preferred stock included in FTNC's
registration statement on Form 8-A, filed September 8, 1989, pursuant to which
FTNC registered the Shareholder Protection Rights under the Exchange Act; and
All documents filed by FTNC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering registered hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated herein by reference will be
deemed to be modified or superseded for the purpose of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is, or is deemed to be, incorporated herein by reference
modifies or supersedes such statement. Any such statement so modified or
superseded will not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
FTNC HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A
COPY OF THIS PROSPECTUS HAS BEEN DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF
ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH
HAVE BEEN OR MAY BE INCORPORATED BY REFERENCE IN THIS PROSPECTUS, OTHER THAN
EXHIBITS TO SUCH DOCUMENTS UNLESS THE EXHIBITS HAVE BEEN SPECIFICALLY
INCORPORATED BY REFERENCE. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO THE
TREASURER, FIRST TENNESSEE NATIONAL CORPORATION, P.O. BOX 84, MEMPHIS,
TENNESSEE 38101, TELEPHONE NUMBER (901) 523-5630.
2
<PAGE> 4
FTNC
FTNC is a regional bank holding company incorporated under the laws of
Tennessee, which, through First Tennessee Bank National Association, Memphis,
Tennessee ("FTB") and its other banking and banking-related subsidiaries,
provides a broad range of financial services. FTNC was incorporated in
Tennessee in 1968. At September 30, 1994, FTNC had consolidated total assets
of approximately $10.4 billion, consolidated total deposits of approximately
$7.6 billion and equity capital of approximately $752.0 million. At September
30, 1994, FTNC ranked 58th among bank holding companies in the United States
and first among bank holding companies headquartered in Tennessee in terms of
total assets.
FTNC coordinates the financial resources of the consolidated enterprise
and maintains systems of financial, operational and administrative control that
allow coordination of selected policies and activities. FTNC operates
principally through FTB, which was chartered as a national banking association
in 1864. As of December 31, 1993, FTB was the largest commercial bank
headquartered in Tennessee both in terms of total assets and deposits. At
September 30, 1994, FTB had total assets of approximately $10.0 billion, total
deposits of approximately $7.1 billion and equity capital of approximately
$658.9 million. FTB conducts a broad range of retail banking and fiduciary
services and had 212 banking locations at September 30, 1994. FTB also offers
a comprehensive range of financial services, including bond broker/ agency
services, mortgage banking and check clearing, to companies nationally. Bond
broker/agency services provided by FTB consist primarily of the sale of
bank-eligible securities to other financial institutions. Subsidiaries of FTNC
and FTB are engaged primarily in providing mortgage banking, integrated check
processing solutions, discount brokerage, equipment finance, venture capital,
investment management and credit life insurance.
The principal executive offices of FTNC are located at 165 Madison Avenue,
Memphis, Tennessee 38103, and its telephone number is (901) 523-4444.
Additional information about FTNC and its subsidiaries is included in
documents incorporated by reference in this Prospectus. See "Incorporation of
Certain Documents by Reference."
3
<PAGE> 5
SELLING SHAREHOLDERS
The following table shows the name of each Selling Shareholder and the
number of Shares being offered by each. After completion of the offering,
assuming all of the Shares being offered are sold, the Selling Shareholders
will not own any shares of Common Stock.
Common Stock Beneficially Owned
<TABLE>
<CAPTION>
Selling Shareholder Prior to Offered Upon Completion Percentage Owned
------------------- Offering Hereby of the Offering Upon Completion of
-------- ------ -------- Offering
--------
<S> <C> <C> <C> <C>
Brown Family Limited 143,504
Partnership No. 1
Brown Family Limited 93,048
Partnership No. 2
Brown Family Limited 93,048
Partnership No. 3
Brown Family Limited 93,048
Partnership No. 4
Brown Family Limited 142,345
Partnership No. 5
Brown Family Limited 92,116
Partnership No. 6
Brown Family Limited 92,116
Partnership No. 7
Brown Family Limited 92,116
Partnership No. 8
</TABLE>
FTNC has agreed to bear all expenses (other than selling commissions and
fees) in connection with the registration and sale of the Shares being offered
by the Selling Shareholders in over-the-counter market transactions or in
negotiated transactions. See "Sale of the Shares." FTNC has filed with the
Commission a Registration Statement on Form S-3 under the Securities Act with
respect to the resale of the Shares from time to time in the over-the-counter
market or in negotiated transactions and has agreed to prepare and file such
amendments and supplements to the Registration Statement as may be necessary to
keep the Registration Statement effective until the earliest of (i) January 3,
1997, (ii) the completion of two offerings under the Registration Statement, or
(iii) the date as of which fewer than 10% of the initial number of Shares are
held by the Selling Shareholders. This Prospectus forms a part of such
Registration Statement.
SALE OF THE SHARES
The sale of the Shares by the Selling Shareholders may be effected from
time to time in transactions in the over-the-counter market, in negotiated
transactions or through a combination of such methods of sale, at fixed
4
<PAGE> 6
prices, which may be changed, at market prices prevailing at the time of the
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Shareholders may effect such transactions by selling the
Shares to or through broker- dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Shareholders and/or the purchasers of the Shares for which such
broker-dealers may act as agents or to whom they sell as principals, or both
(which compensation as to a particular broker-dealer may be in excess of
customary compensation). The Shares may be sold either pursuant to this
Prospectus or pursuant to Rules 145 and 144 promulgated under the Securities
Act of 1933, as amended.
The Selling Shareholders and any broker-dealers who act in connection with
the sale of the Shares hereunder may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and profit on any resale of the Shares as principals might be deemed to be
underwriting discounts and commissions under the Securities Act.
DESCRIPTION OF FTNC CAPITAL STOCK
The following summaries of certain provisions of the Restated Charter, as
amended (the "Charter"), and Bylaws, as amended, of FTNC, the Rights Plan
(defined below) and the Indenture (defined below) do not purport to be
complete, are qualified in their entirety by reference to such instruments,
each of which is an exhibit to the Registration Statement of which this
Prospectus is a part, and are subject, in all respects, to applicable Tennessee
law.
AUTHORIZED CAPITAL STOCK
The authorized capital stock of FTNC currently consists of 5,000,000
shares of Preferred Stock, without par value ("Preferred Stock"), which may be
issued from time to time by resolution of the FTNC Board and 100,000,000 shares
of FTNC Common Stock. As of September 30, 1994, there were 32,202,722 shares
of FTNC Common Stock and no shares of Preferred Stock outstanding. Also,
approximately 3.3 million shares of FTNC Common Stock are reserved for issuance
under various employee stock plans and FTNC's dividend reinvestment plan,
approximately 2.7 million shares are reserved for issuance in connection with
pending acquisitions, the FTNC Board of Directors authorized the repurchase of
approximately 0.5 million shares of FTNC Common Stock in connection with one of
the acquisitions, and 322,027 shares of Preferred Stock are reserved for
issuance under the Rights Plan (as defined herein). Also, FTNC has filed a
shelf registration statement with the SEC pursuant to which it may offer from
time to time senior or subordinated debt securities, preferred stock, including
depository shares, and FTNC Common Stock at an aggregate initial offering price
not to exceed $300 million.
PREFERRED STOCK
The FTNC Board is authorized, without further action by the shareholders,
to provide for the issuance of up to 5,000,000 shares of Preferred Stock,
without par value, from time to time in one or more series and, with respect to
each such series, has the authority to fix the powers (including voting power),
designations, preferences and relative, participating, optional or other
special rights and the qualifications, limitations or restrictions thereof.
Currently, no shares of Preferred Stock are outstanding.
FTNC COMMON STOCK
The FTNC Board is authorized to issue a maximum of 100,000,000 shares of
Common Stock, $2.50 par value per share. The holders of the FTNC Common Stock
are entitled to receive such dividends as may be declared by the FTNC Board
from funds legally available therefor. The holders of the outstanding shares
of FTNC Common Stock are entitled to one vote for each such share on all
matters presented to shareholders and are not entitled to cumulate votes for
the election of directors. Upon any dissolution, liquidation or winding up of
FTNC resulting in a distribution of assets to the shareholders, the holders of
FTNC Common Stock are entitled to receive such
5
<PAGE> 7
assets ratably according to their respective holdings after payment of all
liabilities and obligations and satisfaction of the liquidation preferences of
any shares of Preferred Stock at the time outstanding. The shares of FTNC
Common Stock have no preemptive, redemption, subscription or conversion rights.
The shares of FTNC Common Stock will be, when issued in accordance with the
Merger Agreement, fully paid and nonassessable. Under FTNC's Charter, the FTNC
Board is authorized to issue authorized shares of FTNC Common Stock without
further action by FTNC's shareholders. However, the FTNC Common Stock is
traded in the over-the-counter market and is quoted on the Nasdaq Stock
Market's National Market, which requires shareholder approval of the issuance
of additional shares of FTNC Common Stock in certain situations. The Transfer
Agent for the Common Stock is Norwest Bank Minnesota, National Association.
The FTNC Board is divided into three classes, which results in
approximately 1/3 of the directors being elected each year. In addition, the
Charter and the Bylaws, among other things, generally give to the FTNC Board
the authority to fix the number of directors on the FTNC Board and to remove
directors from and fill vacancies on the FTNC Board, other than removal for
cause and the filling of vacancies created thereby which are reserved to
shareholders exercising at least a majority of the voting power of all
outstanding voting stock of FTNC. To change these provisions of the Bylaws,
other than by action of the FTNC Board, and to amend these provisions of the
Charter or to adopt any provision of the Charter inconsistent with such Bylaw
provisions, would require approval by the holders of at least 80% of the voting
power of all outstanding voting stock. Such classification of the FTNC Board
and such other provisions of the Charter and the Bylaws may have a significant
effect on the ability of the shareholders of FTNC to change the composition of
an incumbent FTNC Board or to benefit from certain transactions which are
opposed by the FTNC Board.
SHAREHOLDER PROTECTION RIGHTS PLAN
Each share of FTNC Common Stock has attached to it one right (a "Right")
issued pursuant to a Shareholder Protection Rights Agreement dated as of
September 7, 1989 (the "Rights Plan"). Each Right entitles its holder to
purchase 1/100th of a share of Participating Preferred Stock, without par
value, for $76.67 (the "Exercise Price"), subject to adjustment, upon the
business day following the earlier of (i) the 10th day after commencement of a
tender or exchange offer which, if consummated, would result in a person's
becoming the beneficial owner of 10% or more of the outstanding shares of FTNC
Common Stock (an "Acquiring Person") and (ii) the first date (the "Flip-in
Date") of public announcement that a person has become an Acquiring Person.
The Rights will expire on the earliest of (i) the Exchange Time (defined
below), (ii) September 18, 1999 and (iii) the date on which the Rights are
redeemed as described below. The FTNC Board may, at its option, at any time
prior to the Flip-in Date, redeem all the Rights at a price of $.01 per Right.
If a Flip-in Date occurs, each Right (other than Rights beneficially owned
by the Acquiring Person or its affiliates, associates or transferees, which
Rights will become void), to the extent permitted by applicable law, will
constitute the right to purchase shares of FTNC Common Stock or Participating
Preferred Stock having an aggregate market price equal to twice the Exercise
Price for an amount in cash equal to the then-current Exercise Price. In
addition, the FTNC Board may, at its option, at any time after a Flip-in Date
and prior to the time that an Acquiring Person becomes the beneficial owner of
more than 50% of the outstanding shares of FTNC Common Stock, elect to exchange
the Rights (other than Rights beneficially owned by the Acquiring Person) for
shares of FTNC Common Stock at an exchange ratio of one share of FTNC Common
Stock per Right (the "Exchange Time").
FTNC may not agree to be acquired by an Acquiring Person without providing
that each Right, upon such acquisition, will constitute the right to purchase
common stock of the Acquiring Person having an aggregate market price equal to
twice the Exercise Price for an amount in cash equal to the then-current
Exercise Price.
6
<PAGE> 8
The Rights will not prevent a takeover of FTNC. The Rights, however, may
have certain anti-takeover effects. The Rights may cause substantial dilution
to a person or group that acquires 10% or more of the outstanding FTNC Common
Stock unless the Rights are first redeemed by the FTNC Board.
SUBORDINATED CAPITAL NOTES DUE 1999
On June 10, 1987, FTNC issued $75,000,000 principal amount of 10 3/8%
Subordinated Capital Notes Due 1999 (the "Capital Notes"). The Capital Notes
currently constitute Tier 2 capital under the Federal Reserve Board's
risk-based capital guidelines. Pursuant to the Indenture, dated as of June 1,
1987 (the "Indenture"), between FTNC and BankAmerica National Trust Company,
formerly Security Pacific National Trust Company (New York), Trustee, at
maturity the Capital Notes are required to be exchanged for Common Stock,
Preferred Stock or certain other eligible capital securities to be issued by
FTNC ("Capital Securities") having a market value equal to the principal amount
of the Capital Notes, except to the extent that FTNC, at its option, shall
elect to pay in cash such principal amount from amounts representing proceeds
of other issuances of Capital Securities designated for such use.
USE OF PROCEEDS
None of the proceeds from the sale of the Shares by the Selling
Shareholders will be received by FTNC.
LEGAL MATTERS
A legal opinion to the effect that the Shares and associated Rights
offered hereby, when sold, will be validly issued, fully paid and
nonassessable, has been rendered by Clyde A. Billings, Jr., Vice President and
Counsel, FTNC. Mr. Billings beneficially owns approximately 10,400 shares of
FTNC Common Stock.
EXPERTS
The consolidated financial statements of FTNC and its subsidiaries
incorporated by reference in FTNC's Annual Report on Form 10-K for the year
ended December 31, 1993 have been audited by Arthur Andersen LLP, independent
public accountants, as set forth in their report thereon dated January 18,
1994, included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance on such
report given upon the authority of such firm as experts in accounting and
auditing.
With respect to the 1991 financial statements of Home Financial
Corporation, a company acquired by FTNC during 1992 in a transaction accounted
for as a pooling of interests, Arthur Andersen LLP relied upon the report of
Baylor and Backus, independent accountants, whose report dated February 21,
1992, except with respect to the information discussed in Note 27, as to which
the date is October 21, 1992, was incorporated by reference in FTNC's Form 10-K
for 1993 and is incorporated herein by reference.
7
<PAGE> 9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
Registration fee to the SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $11,715
Printing expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,000
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,000
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Miscellaneous expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
----
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $19,000
=======
</TABLE>
All fees and expenses are estimates except for the registration fee to
the SEC.
Item 15. Indemnification of Directors and Officers
Tennessee Code Annotated Sections 48-18-501 through 48-18-509 authorize a
corporation to provide for the indemnification of officers, directors,
employees and agents in terms sufficiently broad to permit indemnification
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as amended. FTNC
has adopted the provisions of the Tennessee statute pursuant to Article XXVIII
of its Bylaws. Also, FTNC has a "Directors' and Officers' Liability Insurance
Policy" which provides coverage sufficiently broad to permit indemnification
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as amended.
Tennessee Code Annotated, Section 48-12-102, permits the inclusion in the
charter of a Tennessee corporation of a provision, with certain exceptions,
eliminating the personal monetary liability of directors to the corporation or
its shareholders for breach of the duty of care. FTNC has adopted the
provisions of the statute in Article 13 of its charter.
The shareholders of FTNC have approved an amendment to Article XXVIII of
the Bylaws pursuant to which FTNC is required to indemnify each director and
any officers designated by the FTNC Board, and advance expenses, to the maximum
extent not prohibited by law. In accordance with the foregoing, the FTNC Board
is authorized to enter into individual indemnity agreements with the directors
and such officers. Such indemnity agreements have been approved for all of the
directors and certain officers.
Item 16. Exhibits
Exhibits
Number Description
4(a) Restated Charter, as amended, of the Registrant (incorporated
by reference to Exhibit 3(i) to FTNC's Registration Statement
on Form S-4 (No. 33-53331) filed April 28, 1994)
4(b) Bylaws, as amended, of the Registrant (incorporated by
reference to Exhibit 3(ii) to FTNC's Quarterly Report on Form
10-Q for the quarter ended September 30, 1994)
4(c) Form of Common Stock Certificate, incorporated by reference to
Exhibit 4(a) to FTNC's registration statement on Form S-4 (No.
33-51223), filed November 30, 1993
II-1
<PAGE> 10
4(d) Shareholder Protection Rights Agreement, dated as of September
7, 1989, between FTNC and FTB as Rights Agent, incorporated by
reference to FTNC's Registration Statement on Form 8-A, filed
September 8, 1989
4(e) Indenture, dated as of June 1, 1987, between FTNC and Security
Pacific National Trust Company (New York), Trustee
incorporated by reference to FTNC's Annual Report on Form 10-K
for the fiscal year ended December 31, 1991
4(f) FTNC and certain of its consolidated subsidiaries have
outstanding certain long-term debt. See Note 13 in FTNC's
1993 Annual Report to Shareholders. None of such debt exceeds
10% of the total assets of FTNC and its consolidated
subsidiaries. Thus, copies of constituent instruments
defining the rights of holders of such debt are not required
to be included as exhibits. FTNC agrees to furnish copies of
such instruments to the SEC upon request.
5 Opinion Regarding Legality
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Baylor and Backus
23(c) Consent of Clyde A. Billings, Jr. included in Exhibit 5
24 Powers of Attorney
99 Registration Rights Agreement dated as of January 3, 1995 by
and among First Tennessee National Corporation and the Selling
Shareholders
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales of the
securities are being made, a post-effective amendment to this Registration
Statement:
(i) to include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect any facts or events arising after the effective
date (or most recent post-effective amendment) which,
individually, or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed or any material
change to such information set forth in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8, and the
information required [or] to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
II-2
<PAGE> 11
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each 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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(c) 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.
II-3
<PAGE> 12
SIGNATURES
Pursuant to the requirement 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 its Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis, State of Tennessee, on February 14, 1995.
FIRST TENNESSEE NATIONAL CORPORATION
By: James F. Keen
---------------------------------------------------------
James F. Keen, Senior Vice President and
Controller
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Ralph Horn* Chief Executive Officer February 14, 1995
- -----------------------------------
Ralph Horn (principal executive officer)
and a Director
Elbert L. Thomas, Jr. Senior Vice President and February 14, 1995
- ----------------------------------
Elbert L. Thomas, Jr. Chief Financial Officer (principal
financial officer)
James F. Keen* Senior Vice President and February 14, 1995
- ----------------------------------
James F. Keen Controller (principal
accounting officer)
Jack A. Belz* Director February 14, 1995
- ----------------------------------
Jack A. Belz
Robert C. Blattberg* Director February 14, 1995
- ----------------------------------
Robert C. Blattberg
J. R. Hyde, III* Director February 14, 1995
- ----------------------------------
J. R. Hyde, III
R. Brad Martin* Director February 14, 1995
- ----------------------------------
R. Brad Martin
Joseph Orgill, III* Director February 14, 1995
- ----------------------------------
Joseph Orgill, III
Richard E. Ray* Director February 14, 1995
- ----------------------------------
Richard E. Ray
Vicki G. Roman* Director February 14, 1995
- ----------------------------------
Vicki G. Roman
</TABLE>
II-4
<PAGE> 13
<TABLE>
<S> <C> <C>
Michael D. Rose* Director February 14, 1995
- ----------------------------------
Michael D. Rose
Willaim B. Sansom* Director February 14, 1995
- ----------------------------------
William B. Sansom
Gordon P. Street* Director February 14, 1995
- ----------------------------------
Gordon P. Street
Ronald Terry* Director February 14, 1995
- ----------------------------------
Ronald Terry
By: Clyde A. Billings, Jr. February 14, 1995
---------------------------------
Clyde A. Billings, Jr.
*As Attorney-in-Fact
</TABLE>
[The Power of Attorney is included herein as Exhibit 24.]
II-5
<PAGE> 14
Exhibit Table
-------------
<TABLE>
<CAPTION>
Exhibit Number
- --------------
Description
-----------
<S> <C>
4(a) Restated Charter of FTNC, as amended, attached as Exhibit 3(i) to FTNC's registration statement on
Form S-4 (N0. 33-53331) filed April 28, 1994, and incorporated herein by reference.
4(b) Bylaws of FTNC, as amended, attached as Exhibit 3(ii) to FTNC's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1994 and incorporated herein by reference.
4(c) Form of Common Stock Certificate, incorporated herein by reference to exhibit 4(a) to FTNC's
registration statement on Form S-4 (No. 33-51223) filed November 30, 1993.
4(d) Shareholder Protection Rights Agreement, dated as of September 7, 1989, between FTNC and FTB as
Rights Agent, incorporated by reference to FTNC's Registration Statement on Form 8-A, filed
September 8, 1989.
4(e) Indenture, dated as of June 1, 1987, between FTNC and Security Pacific National Trust Company (New
York), Trustee incorporated by reference to FTNC's Annual Report on Form 10-K for the fiscal year
ended December 31, 1991.
4(f) FTNC and certain of its consolidated subsidiaries have outstanding certain long-term debt. See
Note 13 in FTNC's 1993 Annual Report to Shareholders. None of such debt exceeds 10% of the total
assets of FTNC and its consolidated subsidiaries. Thus, copies of constituent instruments
defining the rights of holders of such debt are not required to be included as exhibits. FTNC
agrees to furnish copies of such instruments to the SEC upon request.
5 Opinion Regarding Legality
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Baylor and Backus
23(c) Consent of Clyde A. Billings, Jr. included in Exhibit 5
24 Powers of Attorney
99 Registration Rights Agreement dated as of January 3, 1995 by and among FTNC and the selling
shareholders
</TABLE>
<PAGE> 1
Exhibit 5
---------
Clyde A. Billings, Jr.
Vice President and Counsel
FIRST TENNESSEE NATIONAL CORPORATION
P. O. Box 84
Memphis, Tennessee 38101
(901) 523-5679
Cable Firbank
February 13, 1995
Board of Directors
First Tennessee National Corporation
165 Madison Avenue
Memphis, TN 38103
Gentlemen:
I have acted as counsel to First Tennessee National Corporation, a
Tennessee corporation (the"Company"), in connection with the registration on
Form S-3, Registration Statement (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), of 841,341 shares (the
"Securities") of Common Stock, par value $2.50 per share, of the Company and
associated stock purchase rights (the "Rights") to be issued pursuant to the
Shareholder Protection Rights Agreement dated as of September 7, 1989 (the
"Rights Agreement") between the Company and First Tennessee Bank National
Association ("FTB"), as Rights Agent (the "Rights Agent"). The Securities are
to be sold by certain shareholders (the "Selling Shareholders") from time to
time pursuant to that certain Registration Rights Agreement by and among the
Company and the Selling Shareholders dated as of January 3, 1995, and as
described in the Registration Statement. The Securities were issued to the
Selling Shareholders in exchange for shares of common stock of Carl I. Brown
and Company ("CIB") pursuant to the terms of the Agreement and Plan of Merger
dated as of September 6, 1994, by and among the Company, FTB and CIB. I have
examined the originals or copies, certified or otherwise identified to my
satisfaction, of such corporate records, certificates and other documents, and
such questions of law, as I have considered necessary or appropriate the
purposes of this opinion.
Upon the basis of such examination, it is my opinion that:
1. The Securities have been duly issued pursuant to the terms of
the Agreement and are validly issued, fully paid and
non-assessable.
2. The Rights attributable to the Securities are validly issued.
In connection with my opinion set forth in paragraph (2) above, I note
that the question whether the Board of Directors of the Company might be
required to redeem the Rights at some future time will depend upon the facts
and circumstances existing at that time and, accordingly, is beyond the scope
of such opinion.
The foregoing opinion is limited to the federal laws of the United
States and the law of the State of Tennessee, and I am expressing no opinion as
to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, I have relied to the extent I deem
such reliance appropriate as to certain matters on statements, representations
and other information obtained from public officials, officers of the Company
and other sources believed by me to be responsible.
<PAGE> 2
I hereby consent to the filing of this opinion as a exhibit to the
Registration Statement, and to the reference to me in the Prospectus that is a
part of the Registration Statement. In giving such consent, I do not thereby
admit that I am in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
Clyde A. Billings, Jr.
Clyde A. Billings, Jr.
<PAGE> 1
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated
January 18, 1994, incorporated by reference in First Tennessee National
Corporation's Form 10-K for the year ended December 31, 1993, and to all
references to our firm included in this registration statement.
Arthur Andersen LLP
Memphis, Tennessee
February 13, 1995
<PAGE> 1
Exhibit 23(b)
BAYLOR AND BACKUS
CERTIFIED PUBLIC ACCOUNTANTS
2112 NORTH ROAN STREET
FIRST TENNESSEE BUILDING, SUITE 801
P. O. BOX 1736
JOHNSON CITY, TN 37605
TELEPHONE 615 282-9000
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report for the
years ended December 31, 1991 and 1990 dated February 21, 1992, except with
respect to the information discussed in Note 27, as to which the date is
October 21, 1992, incorporated by reference in First Tennessee National
Corporation's Form 10-K for the year ended December 31, 1993, and to all
references to our firm included in this registration statement.
Baylor and Backus
Baylor and Backus
Certified Public Accountants
Johnson City, Tennessee
February 13, 1995
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint SUSAN SCHMIDT BIES, JAMES F.
KEEN, CLYDE A. BILLINGS, JR., and TERESA A. FEHRMAN jointly and each of them
severally, his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to execute and sign the
Registration Statement on Form S-3 to be filed with the Securities and Exchange
Commission, pursuant to the provisions of the Securities Act of 1933, by First
Tennessee National Corporation ("Corporation") relating to the sale of its
Common Stock, par value $2.50 per share, pursuant to the Registration Rights
Agreement dated January 3, 1995, by and between the Corporation and certain
shareholders of Carl I. Brown and Company ("CIB"), which was entered into
pursuant to the Agreement and Plan of Merger dated as of September 6, 1994, by
and among the Corporation, First Tennessee Bank National Association, and CIB
and, further, to execute and sign any and all pre-effective and post-effective
amendments thereto and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, or their or
his or her substitute or substitutes, full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all the acts that
said attorneys-in-fact and agents, or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue
hereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
Ralph Horn Chief Executive Officer January 31, 1995
- --------------------------
Ralph Horn (principal executive officer)
and a Director
Susan Schmidt Bies Executive Vice President January 31, 1995
- --------------------------
Susan Schmidt Bies and Chief Financial Officer
(principal financial officer)
James F. Keen Senior Vice President and January 31, 1995
- -----------------
James F. Keen Controller (principal
accounting officer)
Jack A. Belz Director January 31, 1995
- --------------------------
Jack A. Belz
Robert C. Blattberg Director January 31, 1995
- --------------------------
Robert C. Blattberg
J. R. Hyde, II Director January 31, 1995
- -----------------
J. R. Hyde, II
R. Brad Martin Director January 31, 1995
- -----------------
R. Brad Martin
Joseph Orgill, III Director January 31, 1995
- --------------------------
Joseph Orgill, III
</TABLE>
1 of 2
<PAGE> 2
<TABLE>
<S> <C> <C>
Richard E. Ray Director January 31, 1995
- -----------------
Richard E. Ray
Vicki G. Roman Director January 31, 1995
- -----------------
Vicki G. Roman
Michael D. Rose Director January 31, 1995
- -----------------
Michael D. Rose
William B. Sansom Director January 31, 1995
- --------------------------
William B. Sansom
Gordon P. Street, Jr. Director January 31, 1995
- ------------------------
Gordon P. Street, Jr.
Ronald Terry Director January 31, 1995
- --------------------
Ronald Terry
</TABLE>
Page 2 of 2
<PAGE> 1
Exhibit 99
================================================================================
REGISTRATION RIGHTS AGREEMENT
================================================================================
REGISTRATION RIGHTS AGREEMENT, dated as of January 3, 1995 (this
"Agreement"), by and among FIRST TENNESSEE NATIONAL CORPORATION ("FTNC"), and
the persons listed on the signature page hereto ("Shareholders").
RECITALS OF FACT
This Agreement is being entered into pursuant to the Agreement and
Plan of Merger, between FTNC, First Tennessee Bank National Association and
Carl I. Brown and Company ("Mortgage Bank") as amended (the "Merger
Agreement"). As a condition to the closing of the merger of First Tennessee
Interim Corporation with and into Mortgage Bank pursuant to the Merger
Agreement, FTNC has agreed to provide registration rights with respect to the
shares of common stock, par value $2.50 per share (the "Stock"), of FTNC to be
issued to Shareholders as consideration pursuant to the Merger Agreement, as
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
(a) "Affiliate," with respect to any person, shall mean any person
controlling, controlled by or under common control with such person.
(b) [Intentionally left blank]
(c) "Closing Date" shall mean the Closing Date specified in the
Merger Agreement.
(d) "Commission" shall mean the Securities and Exchange Commission
created under the Exchange Act, or, if at any time after the execution of this
Agreement such Commission is not existing and performing the duties now
assigned to it under the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose, then "Commission" shall mean the
body performing such duties at such time.
(e) "Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto, and the rules and regulations promulgated thereunder,
all as the same shall be amended from time to time.
<PAGE> 2
(f) "Offering" shall mean the offering or sale of shares of Stock by
one or more Shareholders pursuant to the Registration Statement in accordance
with the intended methods and timing of disposition by Shareholders as set
forth in the Registration Statement.
(g) The term "person" shall mean an individual, corporation,
association, partnership, joint venture, trust, unincorporated organization,
government or political subdivision thereof or governmental agency.
(h) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time
(i) "Selling Shareholder" shall mean a Shareholder selling shares of
Stock in an Offering.
2. Registration Under the Securities Act. As soon as practicable
after the Closing Date, FTNC shall file a "shelf" registration statement (the
"Registration Statement") providing for the sale by Shareholders (individually
or collectively) of the Stock, pursuant to Rule 415 of the Commission under the
Securities Act, and/or any similar rule that may be adopted by the Commission,
with respect to all of the Stock. FTNC agrees to use its best efforts to cause
the Registration Statement to be effective on or about the first day a person
who is an "affiliate" (for purposes of Rule 145 under the Securities Act) could
sell Stock without disqualifying the Merger for pooling-of-interests accounting
treatment, which in general is the period ending at the time of publication of
financial results covering at least thirty (30) days of combined operations of
FTNC and Carl I. Brown and Company within the meaning of Section 201-01 of the
Commission's Codification of Financial Reporting Policies and to keep such
Registration Statement continuously effective until the earliest of (i) two (2)
years from the date of the closing of the transaction by which the Stock is
issued to the Selling Shareholders, (ii) the completion of two (2) Offerings
under the Registration Statement, or (iii) the date as of which fewer than ten
percent (10%) of the initial number of shares of the Stock is held by
Shareholders; provided, however, (a) FTNC will not be required to file such
registration statement for a period of time (not to exceed ninety days) when
(i) FTNC has determined to proceed with a public offering of its securities
and, in the judgment of the managing underwriter thereof delivered in writing
to FTNC, such filing would have a materially adverse effect on such offering,
or (ii) FTNC is in possession of material information that it deems advisable
not to disclose in a registration statement or (iii) FTNC is engaged in any
program for the purchase of shares of FTNC Common Stock, unless such repurchase
program and the registration may proceed concurrently pursuant to an exemption
under Rule 10b-6 promulgated under the Exchange Act.
3. Procedures for Offering. (a) At any time after the Registration
Statement is declared effective by the Commission, upon not less than ten (10)
business days' prior written notice ("Notice") L. Gregory Brown as the
representative of the Shareholders
- 2 -
<PAGE> 3
("Shareholders' Representative") or any duly appointed successors may notify
FTNC in writing of the intent of one or more Shareholders to participate as
Selling Shareholders in an Offering to be completed within thirty (30) days
following the date that any supplements to the Registration Statement and
Prospectus are made or amendments to the Registration Statement are declared
effective and the Offering commences (the "Offering Period"). In addition, in
the event the market value of the Stock to be sold in the Offering exceeds $20
million, the Offering shall be underwritten by an investment banking firm
acceptable to FTNC. No Offering shall be for fewer than one percent (1%) of
the then outstanding shares of FTNC's common stock, par value $2.50 per share
("FTNC Common Stock") or if the remaining total number of shares of Stock is
less than one percent (1%) of the then outstanding number of shares of FTNC
Common Stock, all of the remaining shares of Stock.
(b) Each notice delivered to FTNC pursuant to Section 3(a) hereto
shall specify the number of shares of Stock intended to be offered and sold by
the Selling Shareholder(s), shall express the present intent of such Selling
Shareholder(s) to offer such shares for sale, shall describe the nature or
method of the proposed offering, including whether such Offering shall be
underwritten and naming the underwriter(s) if known, and shall contain an
undertaking of the Selling Shareholder(s) to provide all information and
materials and take all other action as may be required in order to permit FTNC
to comply with all applicable requirements of the Commission.
(c) At any time after receipt of written notice of a proposed
Offering and prior to the end of the Offering Period, FTNC may by notice (a
"Blackout Notice") to the Selling Shareholders, and any underwriters, postpone
completion of the Offering (i) for a period of up to ninety (90) days in
connection with any matter referred to in Section 4(d)(v)(B), (C) and (D) (the
"Blackout Period"); or (ii) for such shorter period as is reasonably necessary
to take any action required as a result of an event referred to in Section
4(d)(ii), (iii), (iv) or (v)(A). Unless FTNC delivers a Blackout Notice as
provided above, in the event that an Offering shall not be completed within the
respective Offering Period, FTNC shall be under no further obligation to effect
such Offering hereunder. FTNC shall not exercise its option to impose a
Blackout Period on the Selling Shareholders under this Section 3(c) if FTNC
does not also exercise its option to impose a blackout period on all other
shareholders of FTNC who are parties to a registration rights agreement having
provisions comparable to those contained in this Section 3(c) and who have
notified FTNC of an intent to participate as selling shareholders in an
offering as provided in such other shareholders' registration rights agreement
with FTNC to be conducted during a period which is during a Blackout Period
imposed by FTNC on the Selling Shareholders.
(d) If FTNC shall provide the Selling Shareholders with a Blackout
Notice during any Offering Period, at such time as the events or circumstances
which necessitated the Blackout Notice cease to exist, FTNC shall notify the
Selling Shareholder(s) of such fact.
- 3 -
<PAGE> 4
(e) The Selling Shareholder(s) hereby agree to notify FTNC if the
number of shares of Stock intended to be offered pursuant to an Offering are
sold prior to the end of the respective Offering Period which notice shall
terminate the Offering Period.
(f) Following delivery of a Blackout Notice during the period
completion of the Offering is postponed, prior to offering or selling shares of
the Stock under Rule 145 of the Securities Act, a Selling Shareholder shall
obtain advice of counsel that such sale will not be in violation of the federal
securities laws.
4. Registration Procedures. In connection with FTNC's obligations
pursuant to Sections 2 and 3 hereof, FTNC shall:
(a) prepare and file with the Commission the Registration Statement
on Form S-3 (or any other form for which FTNC is eligible and which will permit
distribution of the Stock in the manner contemplated hereby) and use its best
efforts to cause the Registration Statement to become effective as soon as
practicable thereafter;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement or statements hereunder and the
prospectus used in connection therewith as may be necessary to maintain the
effectiveness of the Registration Statement for the applicable period specified
in Section 2 hereof, and comply with the provisions of the Securities Act with
respect to each offering made during such applicable period;
(c) provide the Selling Shareholders and any underwriters to be
included in the Registration Statement hereunder (which term, for purposes of
this Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act) of the securities being sold
and counsel for such underwriters the opportunity to participate in the
preparation of the Registration Statement, each prospectus included therein or
filed with the Commission, and each amendment or supplement thereto; and,
subject to the execution of confidentiality agreements in a form or forms
reasonably satisfactory to FTNC, make available for inspection by such persons
such financial and other information, books and records of FTNC, and cause the
officers, directors and employees of FTNC, and counsel and independent
certified public accountants of FTNC, to respond to such inquiries, as shall be
reasonably necessary, in the opinion of counsel to the Selling Shareholders and
any such underwriters, to conduct a reasonable investigation within the meaning
of the Securities Act;
(d) promptly notify the Selling Shareholders and the managing
underwriters, if any, of the securities being sold and (if requested by any
such person) confirm such advice in writing, (i) when the Registration
Statement, the prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement or
any post-effective amendment, when the same has become effective, (ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or the
- 4 -
<PAGE> 5
prospectus or for additional or supplemental information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the receipt by FTNC of any notification with respect to the suspension
of the qualification of the Stock sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (v) at any time when a
prospectus is required to be delivered under the Securities Act, of (A) the
happening of any event as a result of which such Registration Statement,
prospectus, any prospectus supplement, or any document incorporated by
reference in any of the foregoing contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, in the light of the
circumstances under which they are made and FTNC shall promptly prepare a
supplement or amendment to such prospectus or Registration Statement so that
such prospectus will not contain any untrue statement of material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; (B) that FTNC is in possession of
material information that it deems advisable not to disclose in a registration
statement; (C) that FTNC has determined to proceed with a public offering of
its securities and, in the judgment of the managing underwriter thereof or of
FTNC (if such offering is not underwritten), such Offering would have a
materially adverse effect on the FTNC offering; or (D) that FTNC is engaged in
any program for the purchase of shares of FTNC Common Stock, unless such
repurchase program and the proposed Offering may proceed concurrently pursuant
to an exemption under Rule 10b-6 promulgated under the Exchange Act;
(e) promptly notify the Selling Shareholders of, and make reasonable
efforts to obtain the withdrawal at the earliest possible date of, any order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto;
(f) if requested by any Selling Shareholder, promptly incorporate in
a prospectus supplement or post-effective amendment such information as such
Selling Shareholder or such managing underwriter or underwriters specify should
be included therein relating to the Offering, including, without limitation,
information with respect to the number of shares of Stock being sold to such
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Stock to be sold in such Offering, except to the
extent that FTNC is advised in a written opinion of counsel that the inclusion
of such information is reasonably likely to violate applicable securities laws;
and make all required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(g) furnish to each Selling Shareholder and each underwriter, if any,
of the securities being sold such number of copies of the Registration
Statement, each such amendment and supplement thereto (in each case including
all exhibits thereto), the prospectus included in the Registration Statement
and such other documents as any Selling Shareholder and such
- 5 -
<PAGE> 6
underwriter, if any, may reasonably request in order to facilitate the
disposition of the Stock being offered; FTNC consents to the use of the
prospectus or any amendment or supplement thereto by each Selling Shareholder,
and the underwriters, if any in connection with the Offering solely covered by
such prospectus or any supplement or amendment thereto;
(h) use its best efforts to (i) register or qualify the Stock and the
Offering under such other securities laws or Blue Sky laws of such
jurisdictions as any Selling Shareholder shall reasonably request, (ii) take
any and all such actions as may be reasonably necessary or advisable to enable
any Selling Shareholder and each underwriter, if any, of Stock being sold to
consummate such Offering in such jurisdictions of such Stock; provided,
however, that FTNC shall not be required for any such purpose to (A) qualify
generally to do business as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements of this
Section 4(h) or (B) consent to general service of process in any such
jurisdiction;
(i) use its best efforts to cause all of the Stock to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of FTNC to allow
consummation of the Offering;
(j) cause all such shares of Stock to be listed on each securities
exchange on which similar securities issued by FTNC are then listed; and
(k) cooperate with each Selling Shareholder and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Stock to be sold in the Offering.
FTNC may require any Selling Shareholder and any underwriter to
furnish to FTNC such information regarding such Selling Shareholder and the
distribution of Stock as FTNC may from time to time reasonably request in order
to comply with the Securities Act. Each Shareholder, on behalf of itself, its
Affiliates and any underwriter, agrees to notify FTNC as promptly as
practicable of any inaccuracy or change in information previously furnished by
them to FTNC or of the happening of any event in either case as a result of
which any prospectus contains an untrue statement of a material fact regarding
any Shareholder or the distribution of such Stock or omits to state any
material fact regarding any Shareholder or the distribution of such Stock
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading, and
to furnish promptly to FTNC any additional information required to correct or
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such person or the distribution of such
Stock, an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing.
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<PAGE> 7
5. Expenses. All expenses incident to FTNC's performance of or
compliance with this Agreement will be borne by FTNC, including, without
limitation: all Commission and any National Association of Securities Dealers,
Inc. registration and filing fees and expenses; fees and expenses of
compliance with securities and Blue Sky laws (including reasonable fees and
disbursements of counsel for the underwriters, if any, in connection with Blue
Sky qualifications of the Stock and the preparation of legal investment
surveys, if any) and listing on any national securities exchange or exchanges
on which listing may be sought, document and security certificate preparation
and printing expenses, messenger and delivery expenses; fees and expenses of
any transfer agent; internal expenses (including, without limitation, all
salaries and expenses of FTNC's officers and employees performing legal or
accounting duties); fees and disbursements of counsel and independent certified
public accountants of FTNC collectively, the "expenses"). Notwithstanding the
foregoing, the Selling Shareholders shall pay all underwriting discounts and
commissions attributable to the sale of Stock and the fees and disbursements of
any counsel or other advisors or experts retained by any Selling Shareholder or
any underwriters; provided, that in the case of any underwritten offering, the
underwriters shall be represented by a firm of counsel reasonably acceptable to
FTNC.
6. Indemnification.
(a) Indemnification by FTNC. FTNC shall, and it hereby agrees to,
indemnify and hold harmless each Selling Shareholder and each of their
directors and officers, and each other person, if any, which controls any such
person within the meaning of the Securities Act, from and against any and all
losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected (including legal fees)
with the consent of FTNC) to which such Selling Shareholder, such director,
officer or controlling person thereof, may become subject under the Securities
Act, the common law or otherwise insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, or (ii) any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statement therein not misleading, and FTNC
shall reimburse each Selling Shareholder, such director, officer or controlling
person thereof; for any legal or any other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that FTNC shall not be liable to any
such person in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding, whether commenced or threatened, in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
Registration Statement, or preliminary, final or summary prospectus, or
amendment or supplement, in reliance upon and in conformity with written
information furnished to FTNC by any of such persons; and provided, further,
that FTNC shall not be liable to any
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<PAGE> 8
such person under the indemnity agreement in this Section 6(a) with respect to
any preliminary prospectus to the extent that any such loss, claim, damage or
liability of such person results from the fact that shares of Stock were sold
to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the prospectus (excluding documents
incorporated by reference) or of the prospectus as then amended or supplemented
(excluding documents incorporated by reference) if FTNC has previously
furnished copies thereof to such Selling Shareholder or such underwriter in
compliance with Section 4(g) of this Agreement.
(b) Indemnification by Selling Shareholders. Each Selling
Shareholder shall, and each Selling Shareholder hereby agrees to and each
Selling Shareholder, by acting in such capacity shall be deemed to agree to,
hold harmless FTNC, each director, officer of FTNC and each other person, if
any, who controls FTNC within the meaning of the Securities Act, from and
against any and all losses, claims, damages or liabilities, joint or several,
and expenses including fees of counsel and any amounts paid in settlement
effected with the consent of such holder) to which FTNC, such director or
officer or controlling person may become subject under the Securities Act, the
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings, whether commenced or threatened, in respect
thereof) or expenses arise out of or (i) are based upon any untrue statement or
alleged untrue statement of any material fact in or omission or alleged
omission to state a material fact required to be stated in the Registration
Statement, or any preliminary, final or summary prospectus contained therein,
or any amendment or supplement thereto, or necessary to make the statements
therein not misleading, to the extent, but only to the extent, such statement
or alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to FTNC by any Selling
Shareholder or such underwriter or (ii) results from the fact that shares of
Stock were sold to a person to whom there was not sent or given, at or prior to
the written confirmation of such sale, a copy of the prospectus (excluding
documents incorporated by reference) or of the prospectus as then amended or
supplemented (excluding documents incorporated by reference) if FTNC has
previously furnished copies thereof to such Selling Shareholder or such
underwriter in compliance with Section 4(g) of this Agreement.
(c) Notices of Claims. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 6, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve
the indemnifying party of any obligations under Section 6(a) or 6(b) hereof.
In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
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<PAGE> 9
indemnified party, and after such notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation unless the
indemnifying party has failed to assume the defense of such claim and to employ
counsel reasonably satisfactory to such indemnified person. No indemnifying
party shall consent to entry of any judgment or enter into any settlement with
respect to a claim without the consent of the indemnified party, which consent
shall not be unreasonably withheld, or unless such judgment or settlement
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of such claim for all persons that may be entitled to or obligated to provide
indemnification or contribution under this Section 6. No indemnified party
shall consent to entry of any judgment or enter into any settlement of any
action the defense of which has been assumed by an indemnifying party without
the consent of such indemnifying party, which consent shall not be unreasonably
withheld.
(d) Contribution. If for any reason the indemnification provided for
in Section 6(a) or Section 6(b) is unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses specifically covered by the indemnification provisions
set forth in Section 6(a) or Section 6(b), then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the indemnifying party and the
indemnified party, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the first
sentence of this paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) In the case of any underwritten offering, FTNC agrees, and each
Selling Shareholder agrees, respectively, to provide customary indemnification
and contribution to any person who participates as an underwriter, broker or
dealer, and each affiliate officer, director or partner of such underwriter,
broker or dealer, and each other person, if any, which controls any such
underwriter, broker or dealer within the meaning of the Securities Act, in the
offering of sale of Stock.
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<PAGE> 10
7. Underwritten Offering.
(a) Selection of Underwriters or Agents. If any of the Stock covered
by the Registration Statement pursuant to Section 2 of this Agreement is to be
sold or is required to be sold pursuant to an underwritten Offering, the
managing underwriter or underwriters or agents thereof shall be designated by
the Selling Shareholders selling under the Registration Statement, provided
that such designated managing underwriter or underwriters or agents is or are
reasonably acceptable to FTNC.
(b) Underwriting Agreement. The Registration Statement shall
include, as an exhibit thereto, a form of underwriting agreement, containing
representations, warranties, covenants and conditions in form and substance
customary for secondary distributions of the type contemplated hereby. In the
case of any underwritten Offering, FTNC, Selling Shareholders and the managing
underwriter or underwriters shall become parties to an agreement or agreements
substantially in the form of such underwriting agreement.
8. Maximum Number of Offerings. (a) The Shareholders shall be
entitled to no more than two (2) Offerings.
(b) If a Blackout Notice is given before (i) all the Stock subject to
the Offering has been sold during the Offering Period, and (ii) twenty-three
(23) days of the subject Offering Period have expired, the discontinued
Offering shall not be deemed to be an Offering for purposes of this Agreement.
9. Confidentiality. All information furnished by FTNC to the Selling
Shareholders regarding a Blackout Period, including the Blackout Notice, shall
be kept confidential and the Selling Shareholders shall cause such information
to be kept confidential.
10. Miscellaneous.
(a) Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally, by courier or
by telecopy, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows:
if to FTNC: Harry A. Johnson, III
Executive Vice President and General Counsel
First Tennessee National Corporation
165 Madison Avenue
Memphis, TN 38103
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<PAGE> 11
Copy to: Baker Donelson, Bearman,
& Caldwell
2000 First Tennessee Building
165 Madison Avenue
Memphis, TN 38103
Attention: Charles T. Tuggle, Jr.
if to Shareholders: (i) L. Gregory Brown
612 West 47th Street
Kansas City, Missouri 64112
Attention: L. Gregory Brown
Telecopier: (816) 756-3248
(ii) J.D. Zimmerman, Esq.
5819 Nieman Road
Shawnee, Kansas
Attention: J.D. Zimmerman, Esq.
Telecopier: (816) 268-8877
Copy to: Youngblood & Owens, LC
600 N. Pearl, Suite 600
Dallas, TX 75201
Attention: Diane S. Owens
Telecopier: (214) 969-5701
(b) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and any underwriters acting hereunder in
connection with an underwritten Offering, and their respective successors.
(c) Governing Law. This agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the state of
Tennessee, without giving effect to conflict of laws principles.
(d) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are for convenience of reference only, and do not
constitute a part of and shall not be deemed to limit or affect in any way any
of the provisions of this Agreement.
(e) Entire Agreement; Amendments. This Agreement and other writings
referred to herein or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement may be
amended and the observance of any term of this
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<PAGE> 12
Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) only by a written instrument duly
executed by FTNC and Shareholders.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
instrument to be duly executed by their duly authorized officers as of the date
first written above.
FIRST TENNESSEE NATIONAL CORPORATION
By: /s/ ELBERT L. THOMAS JR.
Title: Senior Vice President
SELLERS:
Brown Family Limited Partnership Number One
By: /s/ MOLLY S. BROWN
Its: General Partner
Brown Family Limited Partnership Number Two
By: /s/ MOLLY S. BROWN
Its: General Partner
Brown Family Limited Partnership Number Three
By: /s/ MOLLY S. BROWN
Its: General Partner
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<PAGE> 13
Brown Family Limited Partnership Number Four
By: /s/ MOLLY S. BROWN
Its: General Partner
Brown Family Limited Partnership Number Five
By: /s/ MOLLY S. BROWN
Its: General Partner
Brown Family Limited Partnership Number Six
By: /s/ MOLLY S. BROWN
Its: General Partner
Brown Family Limited Partnership Number Seven
By: /s/ MOLLY S. BROWN
Its: General Partner
Brown Family Limited Partnership Number Eight
By: /s/ MOLLY S. BROWN
Its: General Partner
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