<PAGE> 1
Pursuant to Rule 424(a)
Registration Nos. 333-17457, 333-17457-01,
333-17457-02, 333-17457-03 and 333-17457-04
SUBJECT TO COMPLETION, DATED DECEMBER 17, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED DECEMBER , 1996
LOGO PREFERRED SECURITIES
FIRST TENNESSEE CAPITAL I
% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES,
SERIES A (QUIPSSM)*
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
FIRST TENNESSEE NATIONAL CORPORATION
---------------------
The % Cumulative Quarterly Income Preferred Securities, Series A (the
"Series A QUIPS"), offered hereby represent beneficial ownership interests in
First Tennessee Capital I, a trust created under the laws of the State of
Delaware (the "Series A Issuer"). First Tennessee National Corporation, a
Tennessee corporation (the "Corporation"), will be the owner of all the
beneficial ownership interests represented by common securities of the Series A
Issuer ("Series A Common Securities" and, collectively with the Series A QUIPS,
the "Series A Securities"). The Bank of New York is the Property
(Continued on next page)
---------------------
SEE "RISK FACTORS" BEGINNING ON PAGE S-6 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE SERIES A QUIPS.
---------------------
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
INSURED BY 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 SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------------
<TABLE>
<CAPTION>
PROCEEDS TO
INITIAL PUBLIC UNDERWRITING THE SERIES A
OFFERING PRICE(1) COMMISSION(2) ISSUER(3)(4)
------------------- ---------------------- -------------------
<S> <C> <C> <C>
Per Preferred Security.............. $ (3) $
Total............................... $ (3) $
</TABLE>
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(1) Plus accrued interest from December , 1996.
(2) The Series A Issuer and the Corporation have each agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting".
(3) In view of the fact that the proceeds of the sale of the Series A QUIPS will
be invested in the Series A Subordinated Debentures, the Corporation has
agreed to pay to the Underwriters as compensation for their arranging the
investment therein of such proceeds $ per Series A QUIPS (or $ in
the aggregate). See "Underwriting".
(4) Expenses of the offering which are payable by the Corporation are estimated
to be $ .
---------------------
The Series A QUIPS offered hereby are offered by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that the Series A
QUIPS will be ready for delivery in book-entry form only through the facilities
of The Depository Trust Company in New York, New York, on or about ,
1996, against payment therefor in immediately available funds.
- ---------------
* "QUIPS" is a service mark of Goldman, Sachs & Co.
GOLDMAN, SACHS & CO.
---------------------
The date of this Prospectus Supplement is December , 1996.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE PROSPECTUS TO
WHICH IT RELATES SHALL CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF
AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY
STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE> 2
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES A QUIPS
AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NASDAQ NATIONAL MARKET SYSTEM, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
(cover page continued)
------------------------
Trustee of the Series A Issuer. The Series A Issuer exists for the sole purpose
of issuing the Series A QUIPS and the Series A Common Securities and investing
the proceeds thereof in $ aggregate principal amount of % Junior
Subordinated Deferrable Interest Debentures, Series A (the "Series A
Subordinated Debentures"), to be issued by the Corporation. The Series A
Subordinated Debentures will mature on , 2026, which date may be
(i) shortened to a date not earlier than , 2001 or (ii) extended to a
date not later than , 2045, in either case if certain conditions
are met. The Corporation has committed to the Federal Reserve Bank of St. Louis
(the "Reserve Bank") that the Corporation will not shorten the Stated Maturity
(as defined herein) without having received the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") to do so, if
then required under applicable Federal Reserve capital guidelines or policies.
The Series A QUIPS will have a preference under certain circumstances with
respect to cash distributions and amounts payable on liquidation or redemption
over the Series A Common Securities. See "Description of Preferred Securities --
Subordination of Common Securities" in the accompanying Prospectus.
Holders of the Series A QUIPS will be entitled to receive preferential
cumulative cash distributions accruing from the date of original issuance and
payable quarterly in arrears on the last day of March, June, September and
December of each year, commencing March 31, 1997, at the annual rate of %
of the Liquidation Amount (as defined in the accompanying Prospectus) of $25 per
Series A QUIPS ("Distributions"). Subject to certain exceptions, as described
herein, the Corporation has the right to defer payment of interest on the Series
A Subordinated Debentures at any time or from time to time for a period not
exceeding 20 consecutive quarters with respect to each deferral period (each, an
"Extension Period"), provided that no Extension Period may extend beyond the
Stated Maturity of the Series A Subordinated Debentures. Upon the termination of
any such Extension Period and the payment of all interest then accrued and
unpaid (together with interest thereon at the rate of %, compounded
quarterly, to the extent permitted by applicable law), the Corporation may elect
to begin a new Extension Period subject to the requirements set forth herein. If
interest payments on the Series A Subordinated Debentures are so deferred,
Distributions on the Series A QUIPS will also be deferred and the Corporation
will not be permitted, subject to certain exceptions described herein, to
declare or pay any cash distributions with respect to the Corporation's capital
stock or debt securities that rank pari passu with or junior to the Series A
Subordinated Debentures. During an Extension Period, interest on the Series A
Subordinated Debentures will continue to accrue (and the amount of Distributions
to which holders of the Series A QUIPS are entitled will accumulate) at the rate
of % per annum, compounded quarterly from the relevant payment date for
such interest, and holders of Series A QUIPS will be required to accrue interest
income for United States federal income tax purposes. See "Certain Terms of
Series A Subordinated Debentures -- Option to Defer Interest Payments" and
"Certain Federal Income Tax Consequences -- Interest Income and Original Issue
Discount".
The Series A Subordinated Debentures are unsecured and subordinated to all
Senior Indebtedness (as defined in the accompanying Prospectus). At September
30, 1996, the aggregate amount of Senior Indebtedness outstanding was
approximately $160 million. Because the Corporation is a holding company, the
right of the Corporation to participate in any distribution of assets of any
subsidiary, including First Tennessee Bank National Association, upon such
subsidiary's liquidation or reorganization or otherwise, is subject to the prior
claims of creditors of that subsidiary, except to the extent that the
Corporation may itself be recognized as a creditor of that subsidiary.
Accordingly,
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(cover page continued)
the Series A Subordinated Debentures (and therefore the Series A QUIPS) will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders thereof should look only to the assets
of the Corporation for payments on the Series A Subordinated Debentures. See
"Description of Subordinated Debentures -- Subordination" in the accompanying
Prospectus.
The Corporation has, through the Series A Guarantee, the Trust Agreement,
the Series A Subordinated Debentures and the Indenture (each as defined herein),
taken together, fully, irrevocably and unconditionally guaranteed all of the
Series A Issuer's obligations under the Series A QUIPS. See "Relationship Among
the Preferred Securities, the Corresponding Junior Subordinated Debentures and
the Guarantees -- Full and Unconditional Guarantee" in the accompanying
Prospectus. The Series A Guarantee of the Corporation guarantees the payment of
Distributions and payments on liquidation or redemption of the Series A QUIPS,
but only in each case to the extent of funds held by the Series A Issuer, as
described herein (the "Series A Guarantee"). See "Description of Guarantees" in
the accompanying Prospectus. If the Corporation does not make interest payments
on the Series A Subordinated Debentures held by the Series A Issuer, the Series
A Issuer will have insufficient funds to pay Distributions on the Series A
QUIPS. The Series A Guarantee does not cover payment of Distributions when the
Series A Issuer has insufficient funds to pay such Distributions. In such event,
a holder of Series A QUIPS may institute a legal proceeding directly against the
Corporation pursuant to the terms of the Indenture to enforce payment of amounts
equal to such Distributions to such holder. See "Description of Junior
Subordinated Debentures -- Enforcement of Certain Rights By Holders of Preferred
Securities" in the accompanying Prospectus. The obligations of the Corporation
under the Series A Guarantee are subordinate and junior in right of payment to
all Senior Indebtedness of the Corporation.
The Series A QUIPS are subject to mandatory redemption, in whole or in
part, upon repayment of Series A Subordinated Debentures at maturity or their
earlier redemption. The Series A Subordinated Debentures are redeemable prior to
maturity at the option of the Corporation (i) on or after , 2001,
in whole at any time or in part from time to time, or (ii) at any time, in whole
(but not in part), upon the occurrence and continuation of a Tax Event or a
Capital Treatment Event (each as defined herein). In any case the redemption
price for the Series A QUIPS will be the aggregate Liquidation Amount of such
Series A QUIPS plus accumulated and unpaid Distributions thereon to the date of
redemption. The Corporation has committed to the Reserve Bank that it will not
cause any such redemption without having received the prior approval of the
Federal Reserve to do so, if then required under applicable Federal Reserve
capital guidelines or policies. See "Certain Terms of Series A QUIPS --
Redemption" and "Certain Terms of Series A Subordinated
Debentures -- Redemption".
The Corporation will have the right at any time to terminate the Series A
Issuer, subject to the Corporation having received prior approval of the Federal
Reserve to do so if then required under applicable capital guidelines or
policies. See "Certain Terms of Series A QUIPS -- Liquidation of Series A Issuer
and Distribution of Series A Subordinated Debentures to Holders". In the event
of the termination of the Series A Issuer, after satisfaction of liabilities to
creditors of the Series A Issuer as required by applicable law, the holders of
the Series A QUIPS will be entitled to receive a Liquidation Amount of $25 per
Series A QUIPS plus accumulated and unpaid Distributions thereon to the date of
payment, which may be in the form of a distribution of such amount in Series A
Subordinated Debentures in exchange therefor, subject to certain exceptions. See
"Description of Preferred Securities -- Liquidation Distribution Upon
Termination" in the accompanying Prospectus.
Application will be made to have the Series A QUIPS approved for quotation
on the NASDAQ National Market under the symbol " ". If Series A
Subordinated Debentures are distributed to the holders of Series A QUIPS in
exchange therefor upon the liquidation of the Series A Issuer, the Corporation
will use its best efforts to have the Series A Subordinated Debentures approved
for
S-3
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(cover page continued)
quotation on the NASDAQ National Market or such stock exchanges or other
automated quotation systems, if any, on which the Series A QUIPS are then listed
or traded.
The Series A QUIPS will be represented by global certificates registered in
the name of The Depository Trust Company ("DTC") or its nominee. Beneficial
interests in the Series A QUIPS will be shown on, and transfers thereof will be
effected only through, records maintained by participants in DTC. Except as
described in the accompanying Prospectus, Series A QUIPS in certificated form
will not be issued in exchange for the global certificates. See "Certain Terms
of Series A QUIPS -- Registration of Series A QUIPS".
S-4
<PAGE> 5
The information in this Prospectus Supplement supplements, and should be
read in conjunction with, the information contained in the accompanying
Prospectus. As used herein, (i) the "Indenture" means the Junior Subordinated
Indenture, as amended and supplemented from time to time, between the
Corporation and The Bank of New York, as trustee (the "Debenture Trustee"), and
(ii) the "Trust Agreement" means the Amended and Restated Trust Agreement
relating to the Series A Issuer among the Corporation, as Depositor, The Bank of
New York, as Property Trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware Trustee (the "Delaware Trustee"), and the Administrative
Trustees named therein (collectively, with the Property Trustee and Delaware
Trustee, the "Issuer Trustees"). Each of the other capitalized terms used in
this Prospectus Supplement and not otherwise defined in this Prospectus
Supplement has the meaning set forth in the accompanying Prospectus.
S-5
<PAGE> 6
RISK FACTORS
Prospective purchasers of the Series A QUIPS should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should particularly consider the following matters.
In addition, because holders of Series A QUIPS may receive Series A Subordinated
Debentures in exchange therefor upon liquidation of the Series A Issuer,
prospective purchasers of Series A QUIPS are also making an investment decision
with regard to the Series A Subordinated Debentures and should carefully review
all the information regarding the Series A Subordinated Debentures contained
herein.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE SERIES A GUARANTEE AND THE SERIES
A SUBORDINATED DEBENTURES
The obligations of the Corporation under the Series A Guarantee issued by
the Corporation for the benefit of the holders of Series A Securities and under
the Series A Subordinated Debentures are unsecured and rank subordinate and
junior in right of payment to all Senior Indebtedness of the Corporation. At
September 30, 1996, the aggregate amount of Senior Indebtedness of the
Corporation outstanding was approximately $160 million. Because the Corporation
is a holding company, the right of the Corporation to participate in any
distribution of the assets of any subsidiary, including First Tennessee Bank
National Association, upon such subsidiary's liquidation or reorganization or
otherwise, is subject to the prior claims of creditors of that subsidiary,
except to the extent that the Corporation may itself be recognized as a creditor
of that subsidiary. Accordingly, the Series A Subordinated Debentures will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Series A Subordinated Debentures
should look only to the assets of the Corporation for payments on the Series A
Subordinated Debentures. See "First Tennessee National Corporation". None of the
Indenture, the Series A Guarantee or the Trust Agreement places any limitation
on the amount of secured or unsecured debt, including Senior Indebtedness, that
may be incurred by the Corporation. See "Description of Guarantees -- Status of
the Guarantees" and "Description of Junior Subordinated
Debentures -- Subordination" in the accompanying Prospectus.
The ability of the Series A Issuer to pay amounts due on the Series A QUIPS
is solely dependent upon the Corporation making payments on the Series A
Subordinated Debentures as and when required.
OPTION TO DEFER INTEREST PAYMENT; TAX CONSEQUENCES; MARKET PRICE CONSEQUENCES
So long as no event of default under the Indenture has occurred or is
continuing, the Corporation has the right under the Indenture to defer payment
of interest on the Series A Subordinated Debentures at any time or from time to
time for a period not exceeding 20 consecutive quarters with respect to each
Extension Period, provided that no Extension Period may extend beyond the Stated
Maturity of the Series A Subordinated Debentures. As a consequence of any such
deferral, quarterly Distributions on the Series A QUIPS by the Series A Issuer
will also be deferred (and the amount of Distributions to which holders of the
Series A QUIPS are entitled will accumulate additional Distributions thereon at
the rate of % per annum, compounded quarterly from the relevant payment
date for such Distributions) during any such Extension Period. During any such
Extension Period, the Corporation may not, and may not permit any subsidiary of
the Corporation to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Corporation's capital stock, (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Corporation (including other series of Junior Subordinated Debentures) that rank
pari passu with or junior in interest to the Series A Subordinated Debentures or
(iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation if such
guarantee ranks pari passu with or junior in interest to the Series A
Subordinated Debentures (other than (a) dividends or distributions in capital
stock of the
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Corporation, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under the Series A Guarantee and
(d) purchases of common stock related to the issuance of common stock or rights
or options under any of the Corporation's benefit plans for its directors,
officers, employees or other persons within the definition of "employee" for
purposes of a registration of shares for an employee benefit plan of the
Corporation, related to the issuance of common stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of common stock
(or securities convertible into or exchangeable for common stock) as
consideration in an acquisition transaction). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period may exceed 20 consecutive quarters
or extend beyond the Stated Maturity of the Series A Subordinated Debentures.
Upon the termination of any Extension Period and the payment of all interest
then accrued and unpaid (together with interest thereon at the annual rate of
%, compounded quarterly from the interest payment date for such interest, to
the extent permitted by applicable law), the Corporation may elect to begin a
new Extension Period subject to the above requirements. There is no limitation
on the number of times that the Corporation may elect to begin an Extension
Period. See "Certain Terms of Series A QUIPS -- Distributions" and "Certain
Terms of Series A Subordinated Debentures -- Option to Defer Interest Payments".
Should an Extension Period occur, a holder of Series A QUIPS will be
required to accrue income (in the form of original issue discount) in respect of
its pro rata share of the Series A Subordinated Debentures held by the Series A
Issuer for United States federal income tax purposes. As a result, a holder of
Series A QUIPS will be required to include such income in gross income for
United States federal income tax purposes in advance of the receipt of cash
attributable to such income, and will not receive the cash related to such
income from the Series A Issuer if the holder disposes of the Series A QUIPS
prior to the record date for the payment of Distributions. See "Certain Federal
Income Tax Consequences -- Interest Income and Original Issue Discount" and
"-- Sales or Redemption of Series A QUIPS".
The Corporation has no current intention of exercising its right to defer
payments of interest on the Series A Subordinated Debentures. However, should
the Corporation elect to exercise such right in the future, the market price of
the Series A QUIPS is likely to be affected. A holder that disposes of its
Series A QUIPS during an Extension Period, therefore, might not receive the same
return on its investment as a holder that continues to hold its Series A QUIPS.
TAX EVENT OR CAPITAL TREATMENT EVENT -- REDEMPTION
Upon the occurrence and continuation of a Tax Event or Capital Treatment
Event (whether occurring before or after , 2001), the Corporation
has the right to redeem the Series A Subordinated Debentures in whole (but not
in part) within 90 days following the occurrence of such Tax Event or Capital
Treatment Event and thereby cause a mandatory redemption of the Series A QUIPS.
The Corporation has committed to the Reserve Bank that it will not cause any
such redemption without having received the prior approval of the Federal
Reserve to do so, if then required under applicable Federal Reserve capital
guidelines or policies.
A "Tax Event" means, with respect to Series A Subordinated Debentures held
by the Series A Issuer or another Issuer (as defined in the Prospectus), the
receipt by the Series A Issuer of an opinion of counsel experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced proposed change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Series A QUIPS under the Trust Agreement, there is more than an insubstantial
risk that (i) the Series A Issuer is, or will be within 90 days of the date of
such opinion, subject to United States federal income tax with respect
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to income received or accrued on the Series A Subordinated Debentures, (ii)
interest payable by the Corporation on the Series A Subordinated Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Corporation, in whole or in part, for United States federal income tax
purposes or (iii) the Series A Issuer is, or will be within 90 days of the date
of the opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges. With respect to Series A Subordinated Debentures
which are no longer held by the Series A Issuer or another Issuer, "Tax Event"
means the receipt by the Corporation of an opinion of counsel experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced proposed change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which proposed change,
pronouncement or decision is announced on or after the date of issuance of the
Series A Subordinated Debentures under the Indenture, there is more than an
insubstantial risk that interest payable by the Corporation on the Series A
Subordinated Debentures is not, or within 90 days of the date of such opinion
will not be, deductible by the Corporation, in whole or in part, for United
States federal income tax purposes.
See " -- Possible Tax Law Changes Affecting the Series A QUIPS" for a
discussion of certain legislative proposals that, if adopted, could give rise to
a Tax Event, which may permit the Corporation to cause a redemption of the
Series A QUIPS prior to , 2001.
A "Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of any amendment to, or change (including any
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such proposed change, pronouncement, action or decision is
announced on or after the date of issuance of the Series A QUIPS under the Trust
Agreement, there is more than an insubstantial risk that the Corporation will
not be entitled to treat an amount equal to the Liquidation Amount of the Series
A QUIPS as "Tier 1 Capital" (or the then equivalent thereof) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Corporation.
EXCHANGE OF SERIES A QUIPS FOR SERIES A SUBORDINATED DEBENTURES
The Corporation will have the right at any time to terminate the Series A
Issuer and, after satisfaction of liabilities to creditors of the Series A
Issuer as required by applicable law, cause the Series A Subordinated Debentures
to be distributed to the holders of the Series A QUIPS in exchange therefor upon
liquidation of the Series A Issuer. The exercise of such right is subject to the
Corporation having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies. See "Certain Terms of
Series A QUIPS -- Liquidation of Series A Issuer and Distribution of Series A
Subordinated Debentures to Holders".
Under current United States federal income tax law and interpretations, a
distribution of the Series A Subordinated Debentures upon a liquidation of the
Series A Issuer should not be a taxable event to holders of the Series A QUIPS.
However, if a Tax Event were to occur which would cause the Series A Issuer to
be subject to United States federal income tax with respect to income received
or accrued on the Series A Subordinated Debentures, a distribution of the Series
A Subordinated Debentures by the Series A Issuer could be a taxable event to the
Series A Issuer and the holders of the Series A QUIPS. See "Certain Federal
Income Tax Consequences -- Distribution of Series A Subordinated Debentures to
Holders of Series A QUIPS".
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SHORTENING OF STATED MATURITY OF SERIES A SUBORDINATED DEBENTURES
The Corporation will have the right at any time to shorten the maturity of
the Series A Subordinated Debentures to a date not earlier than ,
2001 and thereby cause the Series A QUIPS to be redeemed on such earlier date.
The exercise of such right is subject to the Corporation having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies.
EXTENSION OF STATED MATURITY OF SERIES A SUBORDINATED DEBENTURES
The Corporation will also have the right to extend the maturity of the
Series A Subordinated Debentures, whether or not the Series A Issuer is
liquidated and the Series A Subordinated Debentures are distributed to holders
of the Series A QUIPS, to a date no later than the 49th anniversary of the
initial issuance of the Series A QUIPS, provided that the Corporation can extend
the maturity only if at the time such election is made and at the time of such
extension (i) the Corporation is not in bankruptcy, otherwise insolvent or in
liquidation, (ii) the Corporation is not in default in the payment of any
interest or principal on the Series A Subordinated Debentures, (iii) if the
Series A Issuer has not been liquidated, the Series A Issuer is not in arrears
on payments of Distributions on the Series A QUIPS and no deferred Distributions
are accumulated and (iv) the Series A Subordinated Debentures are rated not less
than BBB- by Standard & Poor's Ratings Services or Baa3 by Moody's Investors
Service, Inc. or the equivalent by any other nationally recognized statistical
rating organization and (v) after such extension, the Series A Subordinated
Debentures do not have a remaining term to maturity of more than 30 years. To
the extent that the Stated Maturity of the Series A Subordinated Debentures is
extended at such time as the Series A QUIPS are outstanding, the Series A QUIPS
would remain outstanding until such extended date or until redeemed at an
earlier date.
MARKET PRICES
There can be no assurance as to the market prices for Series A QUIPS or
Series A Subordinated Debentures that may be distributed in exchange for Series
A QUIPS upon liquidation of the Series A Issuer. Accordingly, the Series A QUIPS
that an investor may purchase, whether pursuant to the offer made hereby or in
the secondary market, or the Series A Subordinated Debentures that a holder of
Series A QUIPS may receive on liquidation of the Series A Issuer, may trade at a
discount to the price that the investor paid to purchase the Series A QUIPS
offered hereby. As a result of the existence of the Corporation's right to defer
interest payments, the market price of the Series A QUIPS (which represent
beneficial ownership interests in the Series A Issuer) may be more volatile than
the market prices of debt securities that are not subject to such optional
deferrals. In addition, because the Corporation has the right (i) to shorten the
Stated Maturity of the Series A Subordinated Debentures (subject to prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies) or (ii) to extend the maturity of the Series A
Subordinated Debentures (subject to the conditions described above), there can
be no assurance that the Corporation will not exercise its option to change the
maturity of the Series A Subordinated Debentures as permitted by the terms
thereof and of the Indenture. See "Certain Terms of Series A Subordinated
Debentures" and "Description of Junior Subordinated Debentures -- Corresponding
Junior Subordinated Debentures" in the accompanying Prospectus.
RIGHTS UNDER THE SERIES A GUARANTEE
The Series A Guarantee guarantees to the holders of the Series A Securities
the following payments, to the extent not paid by the Series A Issuer: (i) any
accumulated and unpaid Distributions required to be paid on the Series A
Securities, to the extent that the Series A Issuer has funds on hand available
therefor at such time, (ii) the redemption price with respect to any Series A
Securities called for redemption, to the extent that the Series A Issuer has
funds on hand available therefor at such time, and (iii) upon a voluntary or
involuntary dissolution, winding up or
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liquidation of the Series A Issuer (unless the Series A Subordinated Debentures
are distributed to holders of the Series A Securities), the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and unpaid Distributions
to the date of payment, to the extent that the Series A Issuer has funds on hand
available therefor at such time, and (b) the amount of assets of the Series A
Issuer remaining available for distribution to holders of the Series A
Securities after payment of creditors of the Series A Issuer as required by
applicable law. The Series A Guarantee will be qualified as an indenture under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The
Bank of New York will act as the indenture trustee under the Series A Guarantee
(the "Guarantee Trustee") for the purpose of compliance with the Trust Indenture
Act and will hold the Series A Guarantee for the benefit of the holders of the
Series A Securities. The Bank of New York will also act as Debenture Trustee for
the Series A Subordinated Debentures and as Property Trustee and The Bank of New
York (Delaware) will act as Delaware Trustee under the Trust Agreement.
The Series A Guarantee is subordinated as described under " -- Ranking of
Subordinated Obligations Under the Series A Guarantee and the Series A
Subordinated Debentures".
The holders of not less than a majority in aggregate Liquidation Amount of
the Series A Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Series A Guarantee or to direct the exercise of any trust power
conferred upon the Guarantee Trustee under the Series A Guarantee. Any holder of
the Series A Securities may institute a legal proceeding directly against the
Corporation to enforce its rights under the Series A Guarantee without first
instituting a legal proceeding against the Series A Issuer, the Guarantee
Trustee or any other person or entity. If the Corporation were to default on its
obligation to pay amounts payable under the Series A Subordinated Debentures,
the Series A Issuer would lack funds for the payment of Distributions or amounts
payable on redemption of the Series A Securities or otherwise, and, in such
event, holders of the Series A Securities would not be able to rely upon the
Series A Guarantee for payment of such amounts. Instead, if an event of default
under the Indenture shall have occurred and be continuing and such event is
attributable to the failure of the Corporation to pay interest on or principal
of the Series A Subordinated Debentures on the applicable payment date, then a
holder of Series A Securities may institute a legal proceeding directly against
the Corporation pursuant to the terms of the Indenture for enforcement of
payment to such holder of the principal of or interest on such Series A
Subordinated Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Series A Securities of such holder (a "Direct
Action"). In connection with such Direct Action, the Corporation will have a
right of set-off under the Indenture to the extent of any payment made by the
Corporation to such holder of Series A Securities in the Direct Action. Except
as described herein, holders of Series A Securities will not be able to exercise
directly any other remedy available to the holders of the Series A Subordinated
Debentures or assert directly any other rights in respect of the Series A
Subordinated Debentures. See "Description of Junior Subordinated
Debentures -- Enforcement of Certain Rights by Holders of Preferred Securities,"
"-- Debenture Events of Default" and "Description of Guarantees" in the
accompanying Prospectus. The Trust Agreement provides that each holder of Series
A Securities by acceptance thereof agrees to the provisions of the Series A
Guarantee and the Indenture.
LIMITED VOTING RIGHTS
Holders of Series A QUIPS generally will have limited voting rights
relating only to the modification of the Series A QUIPS and the exercise of the
Series A Issuer's rights as holder of Series A Subordinated Debentures and the
Series A Guarantee. Holders of Series A QUIPS will not be entitled to vote to
appoint, remove or replace the Property Trustee, the Delaware Trustee or any
Administrative Trustee, and such voting rights are vested exclusively in the
holder of the Series A Common Securities except, with respect to the Property
Trustee and the Delaware Trustee, upon the occurrence of certain events
described in the accompanying Prospectus. The Property Trustee,
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<PAGE> 11
the Administrative Trustees and the Corporation may amend the Trust Agreement
without the consent of holders of Series A QUIPS to ensure that the Series A
Issuer will not be taxable as a corporation or classified for United States
federal income tax purposes as a grantor trust unless such action materially and
adversely affects the interests of such holders. See "Description of Preferred
Securities -- Voting Rights; Amendment of Each Trust Agreement" and "-- Removal
of Issuer Trustees" in the accompanying Prospectus.
TRADING CHARACTERISTICS OF SERIES A QUIPS
Application will be made to have the Series A QUIPS approved for quotation
on the NASDAQ National Market. The Series A QUIPS may trade at prices that do
not fully reflect the value of accrued and unpaid interest with respect to the
underlying Series A Subordinated Debentures. See "Certain Federal Income Tax
Consequences -- Interest Income and Original Issue Discount" and "-- Sales or
Redemption of Series A QUIPS" for a discussion of the United States federal
income tax consequences that may result from a taxable disposition of the Series
A QUIPS.
As indicated above, application will be made to have the Series A QUIPS
approved for quotation on the NASDAQ National Market. If the Series A QUIPS are
not listed on the NASDAQ National Market or a national securities exchange and
the underwriters do not make a market for the securities, the liquidity of the
Series A QUIPS could be adversely affected.
POSSIBLE TAX LAW CHANGES AFFECTING THE SERIES A QUIPS
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill") was
released which would, among other things, generally deny interest deductions for
interest on an instrument issued by a corporation that has a maximum weighted
average maturity of more than 20 years and that is not shown as indebtedness on
the separate balance sheet of the issuer or, where the instrument is issued to a
related party (other than a corporation), where the holder or some other related
party issues a related instrument that is not shown as indebtedness on the
issuer's consolidated balance sheet. The above-described provision of the Bill
was proposed to be effective generally for instruments issued on or after
December 7, 1995. If this provision were to apply to the Series A Subordinated
Debentures, the Corporation would not be able to deduct interest on the Series A
Subordinated Debentures. However, on March 29, 1996, the Chairmen of the Senate
Finance and House Ways and Means Committees issued a joint statement (the "Joint
Statement") to the effect that it was their intention that the effective date of
the President's legislative proposals, if adopted, would be no earlier than the
date of appropriate Congressional action. If the principles contained in the
Joint Statement were followed and the Bill were enacted, such legislation would
not apply to the Series A Subordinated Debentures. Although the 104th Congress
adjourned without enacting the Bill, there can be no assurance that future
legislative proposals or final legislation will not adversely affect the ability
of the Corporation to deduct interest on the Series A Subordinated Debentures or
otherwise affect the tax treatment of the transaction described herein. Such a
change could give rise to a Tax Event, which would permit the Corporation to
cause a redemption of the Series A QUIPS before , 2001. The
Corporation has committed to the Reserve Bank that it will not cause any such
redemption without having received the prior approval of the Federal Reserve to
do so, if then required under applicable Federal Reserve capital guidelines or
policies. See "Certain Terms of Series A Subordinated Debentures -- Redemption"
in this Prospectus Supplement and "Description of Preferred
Securities -- Redemption or Exchange -- Tax Event Redemption" in the
accompanying Prospectus. See also "Certain Federal Income Tax
Consequences -- Possible Tax Law Changes".
FIRST TENNESSEE CAPITAL I
First Tennessee Capital I (the "Series A Issuer") is a statutory business
trust created under Delaware law pursuant to (i) the Trust Agreement executed by
the Corporation, as Depositor, The
S-11
<PAGE> 12
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, and the Administrative Trustees named therein, and (ii) the
filing of a certificate of trust with the Delaware Secretary of State on
December 6, 1996. The Series A Issuer's business and affairs are conducted by
the Issuer Trustees: The Bank of New York, as Property Trustee, and The Bank of
New York (Delaware), as Delaware Trustee, and two individual Administrative
Trustees who are employees or officers of or affiliated with the Corporation.
The Series A Issuer exists for the exclusive purposes of (i) issuing and selling
the Series A QUIPS and Series A Common Securities, (ii) using the proceeds from
the sale of Series A QUIPS and Series A Common Securities to acquire Series A
Subordinated Debentures issued by the Corporation and (iii) engaging in only
those other activities necessary or incidental thereto (such as registering the
transfer of the Series A Securities). Accordingly, the Series A Subordinated
Debentures will be the sole assets of the Series A Issuer, and payments under
the Series A Subordinated Debentures will be the sole revenue of the Series A
Issuer. All of the Series A Common Securities will be owned by the Corporation.
The Series A Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Series A QUIPS, except that upon the occurrence and
continuance of an event of default under the Trust Agreement resulting from an
event of default under the Indenture, the rights of the Corporation as holder of
the Series A Common Securities to payment in respect of Distributions and
payments upon liquidation, redemption or otherwise will be subordinated to the
rights of the holders of the Series A QUIPS. See "Description of Preferred
Securities -- Subordination of Common Securities" in the accompanying
Prospectus. The Corporation will acquire Series A Common Securities in an
aggregate Liquidation Amount equal to 3% of the total capital of the Series A
Issuer. The Series A Issuer has a term of 55 years, but may terminate earlier as
provided in the Trust Agreement. The principal executive office of the Series A
Issuer is 165 Madison Avenue, Memphis, Tennessee 38103, Attention: Treasurer,
and its telephone number is (901) 523-5630. See "The Issuers" in the
accompanying Prospectus.
It is anticipated that the Series A Issuer will not be subject to the
reporting requirements under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
FIRST TENNESSEE NATIONAL CORPORATION
The Corporation is a Tennessee corporation incorporated in 1968 and
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended (the "BHCA"). Through First Tennessee Bank National Association (the
"Bank") and its other subsidiaries, the Corporation provides a broad range of
financial services. At September 30, 1996, the Corporation had consolidated
total assets of approximately $12.8 billion and consolidated total deposits of
approximately $9.1 billion. As of September 30, 1996, the Corporation was one of
the 50 largest bank holding companies in the United States in asset size and
market capitalization.
The Corporation's principal subsidiary is the Bank, which as of September
30, 1996 was the largest commercial bank headquartered in Tennessee both in
terms of total assets and deposits. At September 30, 1996, the Bank had total
assets of approximately $11.8 billion and total deposits of approximately $8.3
billion. The Corporation through its banking subsidiaries conducts a broad range
of retail and commercial banking and fiduciary services and had 241 banking
locations in Tennessee and 10 locations in northern Mississippi and 8 in
northwest Arkansas at September 30, 1996. The Corporation provides mortgage
banking services in 28 states. Through the Bank and its other subsidiaries, the
Corporation offers a comprehensive range of financial services, including
general banking services, mortgage banking, bond broker/agency services, credit
card products, merchant credit card processing, nation-wide check clearing,
integrated check processing solutions, trust services, brokerage, venture
capital, and credit life insurance. Bond broker/agency services provided by the
Bank consist primarily of the sale and underwriting of bank-eligible securities
and mortgage loans and providing advisory services to other financial
institutions.
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<PAGE> 13
The Corporation 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. The
Corporation's principal executive offices are located at 165 Madison Avenue,
Memphis, Tennessee 38103, telephone: (901) 523-5630.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
For purposes of the following ratios, (i) earnings represent income from
continuing operations before income taxes, plus fixed charges, (ii) fixed
charges represent interest expense (excluding interest on deposits where
indicated) plus the estimated interest component of net rental expense and (iii)
combined fixed charges and preferred stock dividend requirements represent
interest expense (excluding interest on deposits where indicated), and an amount
equal to the pre-tax earnings required to meet applicable preferred stock
dividend requirements and the estimated interest component of net rental
expense. There were no shares of preferred stock outstanding during any of the
periods below indicated and therefore the ratio of earnings to combined fixed
charges and preferred stock dividend requirements would have been the same as
the ratio of earnings to fixed charges for each period indicated.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
-------------- -------------------------------------------------
1996 1995 1994 1993 1992 1991
-------------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Earnings to Fixed Charges:
Including Interest on
Deposits.................. 1.59x 1.59x 1.68x 1.63x 1.50x 1.26x
Excluding Interest on
Deposits.................. 3.01x 2.99x 3.39x 3.40x 4.11x 2.81x
</TABLE>
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<PAGE> 14
USE OF PROCEEDS
The Corporation intends to use the proceeds from the sale of its Junior
Subordinated Debentures (including Corresponding Junior Subordinated Debentures
issued to the Issuers in connection with the investment by the Issuers of all of
the proceeds from the sale of Trust Securities) for general corporate purposes,
including, but not limited to, stock repurchases, the reduction of indebtedness,
investments in or extensions of credit to existing and future subsidiaries and
the financing of acquisitions.
The Corporation is required by the Federal Reserve to maintain certain
levels of capital for bank regulatory purposes. On October 21, 1996, the Federal
Reserve announced that cumulative preferred securities having the
characteristics of the Series A QUIPS could be included as Tier 1 capital for
bank holding companies. Such Tier 1 capital treatment, together with the
Corporation's ability to deduct, for federal income tax purposes, interest
payable on the Series A Subordinated Debentures, will provide the Corporation
with a more cost-effective means of obtaining capital for bank regulatory
purposes than if the Corporation were to issue preferred stock.
S-14
<PAGE> 15
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Corporation and its subsidiaries as of September 30, 1996 and as adjusted to
give effect to the consummation of the offering of the Series A QUIPS. The
following data should be read in conjunction with the consolidated financial
statements and notes thereto of the Corporation and its subsidiaries
incorporated herein by reference.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
----------------------------
AS
ACTUAL ADJUSTED
---------- ----------
<S> <C> <C>
(IN THOUSANDS)
Total long-term debt........................... $ 255,998 $
---------- ----------
Corporation Obligated Mandatorily Redeemable
Capital Securities of Subsidiary Trust
Holding Solely Junior Subordinated Deferrable
Interest Debentures of the Corporation(a).... --
---------- ----------
Stockholders' Equity
Preferred Stock........................... --
Common Stock.............................. 83,929
Capital Surplus........................... 60,802
Retained Earnings......................... 786,069
Net Unrealized Loss on Securities
Available for Sale Net of Taxes......... (5,764)
---------- ----------
Total Stockholders' Equity........... $ 925,036 $
---------- ----------
Total Capitalization........................... $1,181,034 $
========== ==========
</TABLE>
- ---------------
(a) As described herein, the sole assets of the Series A Issuer will be
approximately $ principal amount of Series A Subordinated Debentures
issued by the Corporation to the Series A Issuer. The Series A Subordinated
Debentures will bear interest at the rate of % per annum, will mature on
, 2026, which date may be shortened to a date not earlier than
, 2001 or extended to a date not later than , 2045,
in either case if certain conditions are met. The Corporation owns all of the
Series A Common Securities of the Series A Issuer.
It is anticipated that the Series A Issuer will not be subject to the
reporting requirements under the Exchange Act.
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<PAGE> 16
ACCOUNTING TREATMENT
For financial reporting purposes, the Series A Issuer will be treated as a
subsidiary of the Corporation and, accordingly, the accounts of the Series A
Issuer will be included in the consolidated financial statements of the
Corporation. The Series A QUIPS will be presented as a separate line item in the
consolidated balance sheets of the Corporation under the caption "Corporation
Obligated Mandatorily Redeemable Capital Securities of Subsidiary Trust Holding
Solely Junior Subordinated Deferrable Interest Debentures of the Corporation"
and appropriate disclosures about the Series A QUIPS, the Series A Guarantee and
the Series A Subordinated Debentures will be included in the notes to the
consolidated financial statements. For financial reporting purposes, the
Corporation will record Distributions payable on the Series A QUIPS as an
expense in the consolidated statements of income.
The Corporation has agreed that future financial reports of the Corporation
will: (i) present the Preferred Securities issued by other Issuer trusts on the
Corporation's balance sheet as a separate line term entitled "Guaranteed
Preferred Beneficial Interests in Corporation's Junior Subordinated Deferrable
Interest Debentures"; (ii) include in a footnote to the financial statements
disclosure that the sole assets of the trusts are the Junior Subordinated
Debentures (specifying as to each trust the principal amount, interest rate and
maturity date of Junior Subordinated Debentures held); and (iii) if Staff
Accounting Bulletin 53 treatment is sought, then include, in an audited footnote
to the financial statements, disclosure that (a) the trusts are wholly owned,
(b) the sole assets of the trusts are the Junior Subordinated Debentures
(specifying as to each trust the principal amount, interest rate and maturity
date of the Junior Subordinated Debentures held), and (c) the obligations of the
Corporation under the Junior Subordinated Debentures, the Indenture, the
relevant trust agreement and the Guarantees, in the aggregate, constitute a full
and unconditional guarantee by the Corporation of the trusts' obligations under
the Preferred Securities issued by each trust.
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<PAGE> 17
CERTAIN TERMS OF SERIES A QUIPS
GENERAL
The following summary of certain terms and provisions of the Series A QUIPS
supplements the description of the terms and provisions of the Preferred
Securities set forth in the accompanying Prospectus under the heading
"Description of Preferred Securities," to which description reference is hereby
made. This summary of certain terms and provisions of the Series A QUIPS, which
describes the material provisions thereof, does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, the Trust
Agreement, to which reference is hereby made. The form of the Trust Agreement
has been filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and accompanying Prospectus form a part.
DISTRIBUTIONS
The Series A QUIPS represent beneficial ownership interests in the Series A
Issuer, and Distributions on each Series A QUIPS will be payable at the annual
rate of % of the stated Liquidation Amount of $25, payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year, to the
holders of the Series A QUIPS on the relevant record dates. The record dates for
the Series A QUIPS will be, for so long as the Series A QUIPS remain in
book-entry form, one Business Day (as defined in the accompanying Prospectus)
prior to the relevant Distribution payment date and, in the event the Series A
QUIPS are not in book-entry form, fifteen days prior to the relevant
Distribution payment date. Distributions will accumulate from the date of
original issuance. The first Distribution payment date for the Series A QUIPS
will be March 31, 1997. The amount of Distributions payable for any period will
be computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which Distributions are payable on the Series A QUIPS is not a
Business Day, then payment of the Distributions payable on such date will be
made on the next succeeding day that is a Business Day (and without any
additional Distributions or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date such payment was originally
payable. See "Description of Preferred Securities -- Distributions" in the
accompanying Prospectus.
So long as no event of default under the Indenture has occurred and is
continuing, the Corporation has the right under the Indenture to defer payment
of interest on the Series A Subordinated Debentures at any time or from time to
time for a period not exceeding 20 consecutive quarters with respect to each
Extension Period, provided that no Extension Period may extend beyond the Stated
Maturity of the Series A Subordinated Debentures. As a consequence of any such
deferral of interest payments by the Corporation, quarterly Distributions on the
Series A QUIPS by the Series A Issuer will also be deferred during any such
Extension Period. Distributions to which holders of the Series A QUIPS are
entitled will accumulate additional Distributions thereon at the rate per annum
of % thereof, compounded quarterly from the relevant payment date for such
Distributions. The term "Distributions" as used herein shall include any such
additional Distributions. During any such Extension Period, the Corporation may
not, and may not permit any subsidiary of the Corporation to, (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock,
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Corporation (including other
series of Junior Subordinated Debentures) that rank pari passu with or junior in
interest to the Series A Subordinated Debentures or (iii) make any guarantee
payments with respect to any guarantee by the Corporation of the debt securities
of any subsidiary of the Corporation if such guarantee ranks pari passu with or
junior in interest to the Series A Subordinated Debentures (other than (a)
dividends or distributions in capital stock of the Corporation, (b) any
declaration of a dividend in connection with the implemen-
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<PAGE> 18
tation of a stockholders' rights plan or the redemption or repurchase of any
such rights pursuant thereto, (c) payments under the Series A Guarantee and (d)
purchases of common stock related to the issuance of common stock or rights or
options under any of the Corporation's benefit plans for its directors,
officers, employees or other persons within the definition of "employee" for
purposes of a registration of shares for an employee benefit plan of the
Corporation, related to the issuance of common stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of common stock
(or securities convertible into or exchangeable for common stock) as
consideration in an acquisition transaction). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of interest
on the Series A Subordinated Debentures, provided that no Extension Period may
exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Series A Subordinated Debentures. Upon the termination of any such Extension
Period and the payment of all interest then accrued and unpaid (together with
interest thereon at the rate of %, compounded quarterly, to the extent
permitted by applicable law), the Corporation may elect to begin a new Extension
Period. There is no limitation on the number of times that the Corporation may
elect to begin an Extension Period. See "Certain Terms of Series A Subordinated
Debentures -- Option to Defer Interest Payments" and "Certain Federal Income Tax
Consequences -- Interest Income and Original Issue Discount".
The Corporation has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series A
Subordinated Debentures.
REDEMPTION
Upon the repayment or redemption, in whole or in part, of the Series A
Subordinated Debentures, whether at Stated Maturity or upon earlier redemption
as provided in the Indenture, the proceeds from such repayment or redemption
shall be applied by the Property Trustee to redeem a Like Amount (as defined in
the accompanying Prospectus) of the Trust Securities, upon not less than 30 nor
more than 60 days notice prior to the date fixed for repayment or redemption, at
a redemption price, with respect to the Series A QUIPS (the "Redemption Price"),
equal to the aggregate Liquidation Amount of such Series A QUIPS plus
accumulated and unpaid Distributions thereon to the date of redemption (the
"Redemption Date"). See "Description of Preferred Securities -- Redemption or
Exchange" in the accompanying Prospectus. For a description of the Stated
Maturity and redemption provisions of the Series A Subordinated Debentures, see
"Certain Terms of Series A Subordinated Debentures -- General" and
" -- Redemption".
LIQUIDATION OF SERIES A ISSUER AND DISTRIBUTION OF SERIES A SUBORDINATED
DEBENTURES TO HOLDERS
The Corporation will have the right at any time to terminate the Series A
Issuer and cause the Series A Subordinated Debentures to be distributed to the
holders of the Series A QUIPS in exchange therefor upon liquidation of the
Series A Issuer. The Corporation has committed to the Reserve Bank that it will
not exercise its right to terminate the Series A Issuer without having received
the prior approval of the Federal Reserve to do so, if then required under
applicable Federal Reserve capital guidelines or policies.
Under current United States federal income tax law and interpretations, a
distribution of Series A Subordinated Debentures in exchange for the Series A
QUIPS should not be a taxable event to holders of the Series A QUIPS. Should
there be a change in law, a change in legal interpretation, a Tax Event or other
circumstances, however, the distribution could be a taxable event to holders of
the Series A QUIPS. See "Certain Federal Income Tax Consequences -- Distribution
of Series A Subordinated Debentures to Holders of Series A QUIPS". If the
Corporation elects neither to redeem the Series A Subordinated Debentures prior
to maturity nor to liquidate the Series A Issuer and distribute the Series A
Subordinated Debentures to holders of the Series A QUIPS in exchange therefor,
the Series A QUIPS will remain outstanding until the Stated Maturity of the
Series A Subordinated Debentures.
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<PAGE> 19
If the Corporation elects to liquidate the Series A Issuer and thereby
causes the Series A Subordinated Debentures to be distributed to holders of the
Series A QUIPS in exchange therefor upon liquidation of the Series A Issuer, the
Corporation shall continue to have the right to shorten or extend the maturity
of the Series A Subordinated Debentures, subject to certain conditions as
described under "Certain Terms of Series A Subordinated Debentures -- General".
LIQUIDATION VALUE
The amount payable on the Series A QUIPS in the event of any liquidation of
the Series A Issuer is $25 per Series A QUIPS plus accumulated and unpaid
Distributions, which amount may be paid in the form of a distribution of a like
amount in Series A Subordinated Debentures, subject to certain exceptions. See
"Description of Preferred Securities -- Liquidation Distribution Upon
Termination" in the accompanying Prospectus.
REGISTRATION OF SERIES A QUIPS
The Series A QUIPS will be represented by global certificates registered in
the name of DTC or its nominee. Beneficial interests in the Series A QUIPS will
be shown on, and transfers thereof will be effected only through, records
maintained by participants in DTC. Except as described below and in the
accompanying Prospectus, Series A QUIPS in certificated form will not be issued
in exchange for the global certificates. See "Book-Entry Issuance" in the
accompanying Prospectus.
A global security shall be exchangeable for Series A QUIPS registered in
the names of persons other than DTC or its nominee only if (i) DTC notifies the
Series A Issuer that it is unwilling or unable to continue as a depositary for
such global security and no successor depositary shall have been appointed, or
if at any time DTC ceases to be a clearing agency registered as such under the
Exchange Act at a time when DTC is required to be so registered to act as such
depositary, (ii) the Issuer in its sole discretion determines that such global
security shall be so exchangeable or (iii) there shall have occurred and be
continuing an event of default under the Indenture with respect to the Series A
Subordinated Debentures. Any global security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for definitive certificates
registered in such names as DTC shall direct. It is expected that such
instructions will be based upon directions received by DTC from its Participants
(as defined in the accompanying Prospectus) with respect to ownership of
beneficial interests in such global security. In the event that Series A QUIPS
are issued in definitive form, such Series A QUIPS will be in denominations of
$25 and integral multiples thereof and may be transferred or exchanged at the
offices described below.
Payments on Series A QUIPS represented by a global security will be made to
DTC, as the depositary for the Series A QUIPS. In the event Series A QUIPS are
issued in certificated form, the Liquidation Amount and Distributions will be
payable, the transfer of the Series A QUIPS will be registrable, and Series A
QUIPS will be exchangeable for Series A QUIPS of other denominations of a like
aggregate Liquidation Amount, at the corporate office of the Property Trustee in
New York, New York, or at the offices of any paying agent or transfer agent
appointed by the Administrative Trustees, provided that payment of any
Distribution may be made at the option of the Administrative Trustees by check
mailed to the address of the persons entitled thereto, by wire transfer or by
direct deposit. In addition, if the Series A QUIPS are issued in certificated
form, the record dates for payment of Distributions will be fifteen days prior
to the relevant Distribution payment date. For a description of DTC and the
terms of the depositary arrangements relating to payments, transfers, voting
rights, redemptions and other notices and other matters, see "Book-Entry
Issuance" in the accompanying Prospectus.
S-19
<PAGE> 20
CERTAIN TERMS OF SERIES A SUBORDINATED DEBENTURES
GENERAL
The following summary of certain terms and provisions of the Series A
Subordinated Debentures supplements the description of the terms and provisions
of the Corresponding Junior Subordinated Debentures (as defined in the
accompanying Prospectus) set forth in the accompanying Prospectus under the
heading "Description of Junior Subordinated Debentures" to which description
reference is hereby made. The summary of certain terms and provisions of the
Series A Subordinated Debentures set forth below, which describes the material
provisions thereof, does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the Indenture, to which reference is
hereby made. The form of Indenture has been filed as an exhibit to the
Registration Statement of which this Prospectus Supplement and accompanying
Prospectus form a part.
Concurrently with the issuance of the Series A QUIPS, the Series A Issuer
will invest the proceeds thereof, together with the consideration paid by the
Corporation for the Series A Common Securities, in the Series A Subordinated
Debentures issued by the Corporation. The Series A Subordinated Debentures will
bear interest at the annual rate of % of the principal amount thereof, payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date"), commencing March 31, 1997, to the
person in whose name each Series A Subordinated Debenture is registered at the
close of business on the relevant record date. The record dates for the Series A
Subordinated Debentures will be, for so long as they are held by an Issuer or in
Global form, the Business Day next preceding each Interest Payment Date and, in
the case of Series A Subordinated Debentures not held by on Issuer or in Global
form, fifteen days prior to each Interest Payment Date. It is anticipated that,
until the liquidation, if any, of the Series A Issuer, each Series A
Subordinated Debenture will be held in the name of the Property Trustee in trust
for the benefit of the holders of the Trust Securities. The amount of interest
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on the
Series A Subordinated Debentures is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date such payment was
originally payable. Accrued interest that is not paid on the applicable Interest
Payment Date will bear additional interest on the amount thereof (to the extent
permitted by law) at the rate per annum of % thereof, compounded quarterly
from the relevant Interest Payment Date. The term "interest" as used herein
shall include quarterly interest payments, interest on quarterly interest
payments not paid on the applicable Interest Payment Date and Additional Sums
(as defined below), as applicable.
The Series A Subordinated Debentures will be issued as a series of junior
subordinated deferrable interest debentures under the Indenture. The aggregate
principal amount of all series of junior subordinated deferrable interest
debentures collectively is limited to $310,000,000.
The Series A Subordinated Debentures will mature on , 2026
(such date, as it may be shortened or extended as hereinafter described, the
"Stated Maturity"). Such date may be shortened at any time by the Corporation to
any date not earlier than , 2001. The Corporation has committed to
the Reserve Bank that it will not shorten the Stated Maturity without having
received the prior approval of the Federal Reserve to do so, if then required
under applicable Federal Reserve capital guidelines or policies. Such date may
also be extended at any time at the election of the Corporation to any date not
later than , 2045, provided that at the time such election is made
and at the time of extension (i) the Corporation is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Corporation is not in default in the
payment of any interest or principal on the Series A Subordinated Debentures,
(iii) if the Series A Issuer has not been liquidated, the Series A Issuer is not
in arrears on payments of Distributions on the Series A QUIPS and no deferred
Distributions are accumulated, (iv) the Series A Subordinated Debentures
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<PAGE> 21
are rated not less than BBB- by Standard & Poor's Ratings Services or Baa3 by
Moody's Investors Service, Inc. or the equivalent by any other nationally
recognized statistical rating organization and (v) after such extension, the
Series A Subordinated Debentures do not have a remaining period to maturity of
more than 30 years. In the event that the Corporation elects to shorten or
extend the maturity of the Series A Subordinated Debentures, it shall give
notice to the Debenture Trustee, and the Debenture Trustee shall give notice of
such shortening or extension to the holders of the Series A Subordinated
Debentures no more than 30 and no less than 60 days prior to the effectiveness
thereof.
The Series A Subordinated Debentures will be unsecured and will rank junior
and be subordinate in right of payment to all Senior Indebtedness of the
Corporation. See "Description of Junior Subordinated
Debentures -- Subordination" in the accompanying Prospectus. At September 30,
1996, the aggregate amount of Senior Indebtedness outstanding was approximately
$160 million. Because the Corporation is a holding company, the right of the
Corporation to participate in any distribution of assets of any subsidiary,
including the Bank, upon such subsidiary's liquidation or reorganization or
otherwise, is subject to the prior claims of creditors of that subsidiary,
except to the extent that the Corporation may itself be recognized as a creditor
of that subsidiary. Accordingly, the Series A Subordinated Debentures will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Series A Subordinated Debentures
should look only to the assets of the Corporation for payments on the Series A
Subordinated Debentures. The Indenture does not limit the incurrence or issuance
of other secured or unsecured debt of the Corporation, including Senior
Indebtedness, whether under the Indenture, any existing indenture or any other
indenture that the Corporation may enter into in the future or otherwise. See
"Description of Junior Subordinated Debentures -- Subordination" in the
accompanying Prospectus.
OPTION TO DEFER INTEREST PAYMENTS
So long as no event of default under the Indenture has occurred and is
continuing, the Corporation has the right under the Indenture at any time or
from time to time during the term of the Series A Subordinated Debentures to
defer payment of interest on the Series A Subordinated Debentures for a period
not exceeding 20 consecutive quarters with respect to each Extension Period,
provided that no Extension Period may extend beyond the Stated Maturity of the
Series A Subordinated Debentures. At the end of such Extension Period, the
Corporation must pay all interest then accrued and unpaid on the Series A
Subordinated Debentures (together with interest on such unpaid interest at the
annual rate of %, compounded quarterly from the relevant Interest Payment
Date, to the extent permitted by applicable law). During an Extension Period,
interest will accrue and holders of Series A Subordinated Debentures (or holders
of Series A QUIPS while such series is outstanding) will be required to accrue
interest income for United States federal income tax purposes. See "Certain
Federal Income Tax Consequences -- Interest Income and Original Issue Discount".
During any such Extension Period, the Corporation may not, and may not
permit any subsidiary of the Corporation to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Corporation's capital stock, (ii) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Corporation (including other series of Junior
Subordinated Debentures) that rank pari passu with or junior in interest to the
Series A Subordinated Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation if such guarantee ranks pari passu with or junior
in interest to the Series A Subordinated Debentures (other than (a) dividends or
distributions in capital stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Series A Guarantee, and (d) purchases of common stock related
to the issuance of common stock or rights or options under any of the
Corporation's benefit plans for its directors,
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<PAGE> 22
officers, employees or other persons within the definition of "employee" for
purposes of a registration of shares for an employee benefit plan of the
Corporation, related to the issuance of common stock or rights under a dividend
reinvestment and stock purchase plan, or related to the issuance of common stock
(or securities convertible into or exchangeable for common stock) as
consideration in an acquisition transaction). Prior to the termination of any
such Extension Period, the Corporation may further defer the payment of interest
on the Series A Subordinated Debentures, provided that no Extension Period may
exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Series A Subordinated Debentures. Upon the termination of any such Extension
Period and the payment of all interest then accrued and unpaid (together with
interest thereon at the rate of %, compounded quarterly, to the extent
permitted by applicable law), the Corporation may elect to begin a new Extension
Period subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Corporation must give
the Property Trustee, the Administrative Trustees and the Debenture Trustee
notice of its election to begin such Extension Period at least one Business Day
prior to the earlier of (i) the date interest on the Series A Subordinated
Debentures would have been payable except for the election to begin such
Extension Period, (ii) the date the Administrative Trustees are required to give
notice to the NASDAQ National Market or other applicable stock exchange or
automated quotation system on which the Series A QUIPS are then listed or quoted
or to holders of Series A Subordinated Debentures of the record date for such
Distributions or (iii) the date such Distributions are payable, but in any event
not less than one Business Day prior to such record date. The Debenture Trustee
shall give notice of the Corporation's election to begin a new Extension Period
to the holders of the Series A Subordinated Debentures. There is no limitation
on the number of times that the Corporation may elect to begin an Extension
Period. See "Description of Junior Subordinated Debentures -- Option to Defer
Interest Payments" in the accompanying Prospectus.
ADDITIONAL SUMS
If the Series A Issuer is required to pay any additional taxes, duties or
other governmental charges as a result of a Tax Event, the Corporation will pay
as additional amounts on the Series A Subordinated Debentures such amounts as
shall be required so that the Distributions payable by the Series A Issuer shall
not be reduced as a result of any such additional taxes, duties or other
governmental charges.
REDEMPTION
The Series A Subordinated Debentures are redeemable prior to maturity at
the option of the Corporation (i) on or after , 2001, in whole at
any time or in part from time to time or (ii) at any time in whole (but not in
part) within 90 days following the occurrence and continuation of a Tax Event or
Capital Treatment Event, in either case at a redemption price equal to the
accrued and unpaid interest on the Series A Subordinated Debentures so redeemed
to the date fixed for redemption, plus 100% of the principal amount thereof. The
Corporation has committed to the Reserve Bank that it will not cause any such
redemption without having received the prior approval of the Federal Reserve to
do so, if then required under applicable Federal Reserve capital guidelines or
policies. See "Description of Junior Subordinated Debentures -- Redemption" in
the accompanying Prospectus.
DISTRIBUTION OF SERIES A SUBORDINATED DEBENTURES
As described under "Certain Terms of Series A QUIPS -- Liquidation of
Series A Issuer and Distribution of Series A Subordinated Debentures to
Holders," under certain circumstances involving the termination of the Series A
Issuer, Series A Subordinated Debentures may be distributed to the holders of
the Series A QUIPS in exchange therefor upon liquidation of the Series A Issuer
after satisfaction of liabilities to creditors of the Series A Issuer as
provided by applicable law. If distributed to holders of Series A QUIPS, the
Series A Subordinated Debentures will initially be
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<PAGE> 23
issued in the form of one or more global securities and DTC, or any successor
depositary for the Series A QUIPS, will act as depositary for the Series A
Subordinated Debentures. It is anticipated that the depositary arrangements for
the Series A Subordinated Debentures would be substantially identical to those
in effect for the Series A QUIPS. If Series A Subordinated Debentures are
distributed to the holders of Series A QUIPS in exchange therefor upon the
liquidation of the Series A Issuer, the Corporation will use its best efforts to
have the Series A Subordinated Debentures approved for quotation on the NASDAQ
National Market or such stock exchanges or other automated quotation system, if
any, on which the Series A QUIPS are then listed or quoted. There can be no
assurance as to the market price of any Series A Subordinated Debentures that
may be distributed to the holders of Series A QUIPS.
REGISTRATION OF SERIES A SUBORDINATED DEBENTURES
The Series A Subordinated Debentures will be registered in the name of the
Series A Issuer. In the event that the Series A Subordinated Debentures are
distributed to holders of Series A QUIPS, it is anticipated that the depositary
and other arrangements for the Series A Subordinated Debentures will be
substantially identical to those in effect for the Series A QUIPS as applicable.
See "Certain Terms of Series A QUIPS -- Registration of Series A QUIPS.
S-23
<PAGE> 24
CERTAIN TERMS OF SERIES A GUARANTEE
The Series A Guarantee guarantees to the holders of the Series A Securities
the following payments, to the extent not paid by the Series A Issuer: (i) any
accumulated and unpaid Distributions required to be paid on the Series A
Securities, to the extent that the Series A Issuer has funds on hand available
therefor at such time, (ii) the redemption price with respect to any Series A
Securities called for redemption, to the extent that the Series A Issuer has
funds on hand available therefor at such time, and (iii) upon a voluntary or
involuntary dissolution, winding-up or liquidation of the Series A Issuer
(unless the Series A Subordinated Debentures are distributed to holders of the
Series A Securities), the lesser of (a) the aggregate of the Liquidation Amount
and all accumulated and unpaid Distributions to the date of payment, to the
extent that the Series A Issuer has funds on hand available therefor at such
time, and (b) the amount of assets of the Series A Issuer remaining available
for distribution to holders of the Series A Securities after payment of
creditors of the Series A Issuer as required by applicable law. The Series A
Guarantee will be qualified as an indenture under the Trust Indenture Act. The
Bank of New York will act as the Guarantee Trustee for the purposes of
compliance with the Trust Indenture Act and will hold the Series A Guarantee for
the benefit of the holders of the Series A Securities. The Bank of New York will
also act as Debenture Trustee for the Series A Subordinated Debentures and as
Property Trustee.
The holders of not less than a majority in aggregate liquidation amount of
the Series A Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Series A Guarantee or to direct the exercise of any trust power
conferred upon the Guarantee Trustee under the Series A Guarantee. Any holder of
the Series A Securities may institute a legal proceeding directly against the
Corporation to enforce its rights under the Series A Guarantee without first
instituting a legal proceeding against the Series A Issuer, the Guarantee
Trustee or any other person or entity. If the Corporation were to default on its
obligation to pay amounts payable under the Series A Subordinated Debentures,
the Series A Issuer would lack funds for the payment of Distributions or amounts
payable on redemption of the Series A Securities or otherwise, and, in such
event, holders of the Series A Securities would not be able to rely upon the
Series A Guarantee for payment of such amounts. Instead, if an event of default
under the Indenture shall have occurred and be continuing and such event is
attributable to the failure of the Corporation to pay interest on or principal
of the Series A Subordinated Debentures on the applicable payment date, then a
holder of Series A Securities may institute a Direct Action against the
Corporation pursuant to the terms of the Indenture for enforcement of payment to
such holder of the principal of or interest on such Series A Subordinated
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Series A Securities of such holder. In connection with such Direct
Action, the Corporation will have a right of set-off under the Indenture to the
extent of any payment made by the Corporation to such holder of Series A
Securities in the Direct Action. Except as described herein, holders of Series A
Securities will not be able to exercise directly any other remedy available to
the holders of the Series A Subordinated Debentures or assert directly any other
rights in respect of the Series A Subordinated Debentures. See "Description of
Guarantees" in the accompanying Prospectus. The Trust Agreement provides that
each holder of Series A Securities by acceptance thereof agrees to the
provisions of the Series A Guarantee and the Indenture.
S-24
<PAGE> 25
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income
tax consequences of the purchase, ownership and disposition of Series A QUIPS.
This summary only addresses the tax consequences to a person that acquires
Series A QUIPS on their original issue at their original offering price and that
is (i) an individual citizen or resident of the United States, (ii) a
corporation or partnership organized in or under the laws of the United States
or any state thereof or the District of Columbia or (iii) an estate or trust the
income of which is subject to United States federal income tax regardless of
source (a "United States Person"). This summary does not address all tax
consequences that may be applicable to a United States Person that is a
beneficial owner of Series A QUIPS, nor does it address the tax consequences to
(i) persons that are not United States Persons, (ii) persons that may be subject
to special treatment under United States federal income tax law, such as banks,
insurance companies, thrift institutions, regulated investment companies, real
estate investment trusts, tax-exempt organizations and dealers in securities or
currencies, (iii) persons that will hold Series A QUIPS as part of a position in
a "straddle" or as part of a "hedging," "conversion" or other integrated
investment transaction for federal income tax purposes, (iv) persons whose
functional currency is not the United States dollar or (v) persons that do not
hold Series A QUIPS as capital assets.
The statements of law or legal conclusion set forth in this summary
constitute the opinion of Sullivan & Cromwell, special tax counsel to the
Corporation and the Series A Issuer. This summary is based upon the Internal
Revenue Code of 1986, as amended (the "Code"), Treasury Regulations, Internal
Revenue Service rulings and pronouncements and judicial decisions now in effect,
all of which are subject to change at any time. Such changes may be applied
retroactively in a manner that could cause the tax consequences to vary
substantially from the consequences described below, possibly adversely
affecting a beneficial owner of Series A QUIPS. In particular, legislation has
been proposed that could adversely affect the Corporation's ability to deduct
interest on the Series A Subordinated Debentures, which may in turn permit the
Corporation to cause a redemption of the Series A QUIPS. See "-- Possible Tax
Law Changes". The authorities on which this summary is based are subject to
various interpretations, and it is therefore possible that the federal income
tax treatment of the purchase, ownership and disposition of Series A QUIPS may
differ from the treatment described below.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF SERIES A QUIPS, AS WELL AS THE
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
CLASSIFICATION OF THE SERIES A ISSUER
Under current law and assuming compliance with the terms of the Trust
Agreement, and certain similar factual matters, the Series A Issuer will not be
taxable as a corporation for United States federal income tax purposes. As a
result, each beneficial owner of Series A QUIPS (a "Securityholder") will be
required to include in its gross income its pro rata share of the interest
income, including original issue discount, paid or accrued with respect to the
Series A Subordinated Debentures whether or not cash is actually distributed to
the Securityholders. See "Interest Income and Original Issue Discount".
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under recently issued Treasury regulations applicable to debt instruments
issued on or after August 13, 1996 (the "Regulations"), a "remote" contingency
that stated interest will not be timely paid will be ignored in determining
whether a debt instrument is issued with original issue discount ("OID"). The
Corporation believes that the likelihood of its exercising its option to defer
payments is remote. Based on the foregoing, the Corporation believes that the
Series A Subordinated Debentures will not be considered to be issued with OID at
the time of their original issuance and, accordingly, a Securityholder should
include in gross income such Securityholder's allocable share of interest on the
Series A Subordinated Debentures. The following discussion assumes that unless
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<PAGE> 26
and until the Corporation exercises its option to defer interest on the Series A
Subordinated Debentures, the Series A Subordinated Debentures will not be
considered as issued with OID.
Under the Regulations, if the Corporation exercised its option to defer any
payment of interest, the Series A Subordinated Debentures would at that time be
treated as issued with OID, and all stated interest on the Series A Subordinated
Debentures would thereafter be treated as OID as long as the Series A
Subordinated Debentures remained outstanding. In such event, all of a holder's
taxable interest income with respect to the Series A Subordinated Debentures
would be accounted for as OID on an economic accrual basis regardless of such
Securityholder's method of tax accounting, and actual distributions of stated
interest would not be reported as taxable income. Consequently, a Securityholder
would be required to include in gross income OID even though the Corporation
would not make any actual cash payments during an Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the Internal Revenue Service (the "IRS"), and it is possible
that the IRS could take a position contrary to the interpretation herein.
Because income on the Series A QUIPS will constitute interest or OID,
corporate Securityholders will not be entitled to a dividends-received deduction
with respect to any income recognized with respect to the Series A QUIPS.
Subsequent uses of the term "interest" in this summary include income in
the form of OID.
DISTRIBUTION OF SERIES A SUBORDINATED DEBENTURES TO HOLDERS OF SERIES A QUIPS
Under current law, a distribution by the Series A Issuer of the Series A
Subordinated Debentures as described under the caption 'Certain Terms of Series
A QUIPS -- Liquidation of Series A Issuer and Distribution of Series A
Subordinated Debentures to Holders" will be non-taxable and will result in the
Securityholder receiving directly its pro rata share of the Series A
Subordinated Debentures previously held indirectly through the Series A Issuer,
with a holding period and aggregate tax basis equal to the holding period and
aggregate tax basis such Securityholder had in its Series A QUIPS before such
distribution. If, however, the liquidation of the Series A Issuer were to occur
because the Series A Issuer is subject to United States federal income tax with
respect to income accrued or received on the Series A Subordinated Debentures,
the distribution of Series A Subordinated Debentures to Securityholders by the
Series A Issuer would be a taxable event to the Series A Issuer and each
Securityholder, and the Securityholder would recognize gain or loss as if the
Securityholder had exchanged its Series A QUIPS for the Series A Subordinated
Debentures it received upon the liquidation of the Series A Issuer. A
Securityholder will include interest in income in respect of Series A
Subordinated Debentures received from the Series A Issuer in the manner
described above under "Interest Income and Original Issue Discount".
SALES OR REDEMPTION OF SERIES A PREFERRED SECURITIES
A Securityholder that sells (including a redemption for cash) Series A
QUIPS will recognize gain or loss equal to the difference between its adjusted
tax basis in the Series A QUIPS and the amount realized on the sale of such
Series A QUIPS. Assuming that the Corporation does not exercise its option to
defer payment of interest on the Series A Subordinated Debentures, and the
Series A QUIPS are not considered issued with OID, a Securityholder's adjusted
tax basis in the Series A QUIPS generally will be its initial purchase price. If
the Series A Subordinated Debentures are deemed to be issued with OID as a
result of the Corporation's deferral of any interest payment, a Securityholder's
tax basis in the Series A QUIPS generally will be its initial purchase price,
increased by OID previously includible in such Securityholder's gross income to
the date of disposition and decreased by distributions or other payments
received on the Series A QUIPS since and including the date of the first
Extension Period. Such gain or loss generally will be a capital gain or loss
(except to the extent any amount realized is treated as a payment of accrued
interest with respect to such holder's pro rata share of the Series A
Subordinated Debentures required to be included in income) and generally will be
a long-term capital gain or loss if the Series A QUIPS have been held for more
than one year.
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<PAGE> 27
Should the Corporation exercise its option to defer any payment of interest
on the Series A Subordinated Debentures, the Series A QUIPS may trade at a price
that does not accurately reflect the value of accrued but unpaid interest with
respect to the underlying Series A Subordinated Debentures. In the event of such
a deferral, a Securityholder who disposes of its Series A QUIPS between record
dates for payments of Distributions thereon will be required to include in
income as ordinary income accrued but unpaid interest on the Series A
Subordinated Debentures to the date of disposition as OID and to add such amount
to its adjusted tax basis in its pro rata share of the underlying Series A
Subordinated Debentures deemed disposed of. To the extent the selling price is
less than the holder's adjusted tax basis, such Securityholder will recognize a
capital loss. Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for United States federal income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest income paid or accrued on the Series A QUIPS held of
record by United States Persons (other than corporations and other exempt
Securityholders) will be reported to the IRS. "Backup" withholding at a rate of
31% will apply to payments of interest to non-exempt United States Persons
unless the Securityholder furnishes its taxpayer identification number in the
manner prescribed in applicable Treasury Regulations, certifies that such number
is correct, certifies as to no loss of exemption from backup withholding and
meets certain other conditions.
Payment of the proceeds from the disposition of Series A QUIPS to or
through the United States office of a broker is subject to information reporting
and backup withholding unless the holder or beneficial owner establishes an
exemption from information reporting and backup withholding.
Any amounts withheld from a Securityholder under the backup withholding
rules will be allowed as a refund or a credit against such Securityholder's
United States federal income tax liability, provided the required information is
furnished to the IRS.
It is anticipated that income on the Series A QUIPS will be reported to
holders on Form 1099 and mailed to holders of the Series A QUIPS by January 31
following each calendar year.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill") was
released which would, among other things, generally deny interest deductions for
interest on an instrument issued by a corporation that has a maximum weighted
average maturity of more than 20 years and that is not shown as indebtedness on
the separate balance sheet of the issuer or, where the instrument is issued to a
related party (other than a corporation), where the holder or some other related
party issues a related instrument that is not shown as indebtedness on the
issuer's consolidated balance sheet. The above-described provision of the Bill
was proposed to be effective generally for instruments issued on or after
December 7, 1995. If this provision were to apply to the Series A Subordinated
Debentures, the Corporation would not be able to deduct interest on the Series A
Subordinated Debentures. However, on March 29, 1996, the Chairman of the Senate
Finance and House Ways and Means Committees issued a joint statement (the "Joint
Statement") to the effect that it was their intention that the effective date of
the President's legislative proposals, if adopted, would be no earlier than the
date of appropriate Congressional action. If the principles contained in the
Joint Statement were followed and the Bill were enacted, such legislation would
not apply to the Series A Subordinated Debentures. Although the 104th Congress
adjourned without enacting the Bill, there can be no assurance that future
legislative proposals or final legislation will not adversely affect the ability
of the Corporation to deduct interest on the Series A Subordinated Debentures or
otherwise affect the tax treatment of the transaction described herein. Such a
change could give rise to a Tax Event, which would permit the Corporation to
cause a redemption of the Series A QUIPS before , 2001. The
Corporation has committed to the Reserve Bank that it will not cause any such
redemption without having received the prior approval of the Federal Reserve to
do so, if then required under applicable Federal Reserve capital guidelines or
policies. See "Certain Terms of Series A Subordinated Debentures -- Redemption"
in this Prospectus Supplement and "Description of Preferred
Securities -- Redemption or Exchange -- Tax Event Redemption" in the
accompanying Prospectus. See also "Certain Federal Income Tax
Consequences -- Possible Tax Law Changes".
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<PAGE> 28
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement, the Corporation and the Series A Issuer have agreed that the Series A
Issuer will sell to Goldman, Sachs & Co. (the "Underwriters"), and the
Underwriters have agreed to purchase from the Series A Issuer, the number of
Series A QUIPS set forth opposite their name below. In the Underwriting
Agreement, the Underwriters have agreed, subject to the terms and conditions set
forth therein, to purchase all the Series A QUIPS offered hereby if any of the
Series A QUIPS are purchased. In the event of a default by an Underwriter, the
Underwriting Agreement provides that, in certain circumstances, the purchase
commitments of the nondefaulting Underwriters may be increased or the
Underwriting Agreement may be terminated.
<TABLE>
<CAPTION>
NUMBER OF
SERIES A
UNDERWRITERS QUIPS
--------------------------------------------------------------- ---------
<S> <C>
Goldman, Sachs & Co. ..........................................
---------
Total................................................
=========
</TABLE>
The Underwriters propose initially to offer the Series A QUIPS to the
public at the public offering price set forth on the cover page of this
Prospectus Supplement and to certain dealers at such price less a concession not
in excess of $. per Series A QUIPS. The Underwriters may allow, and such
dealers may reallow, a discount not in excess of $. per Series A QUIPS to
certain other dealers. After the initial public offering, the public offering
price, concession and discount may be changed.
In view of the fact that the proceeds from the sale of the Series A QUIPS
will be used to purchase the Series A Subordinated Debentures issued by the
Corporation, the Underwriting Agreement provides that the Corporation will pay
as Underwriters' compensation for the Underwriters' arranging the investment
therein of such proceeds an amount of $. per Series A QUIPS for the accounts
of the Underwriters.
The Corporation and the Series A Issuer have agreed that, during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (i) the termination of trading restrictions on the
Series A QUIPS, as determined by the Underwriters, and (ii) days after the
closing date, they will not offer, sell, contract to sell or otherwise dispose
of any Preferred Securities, any other beneficial interests in the assets of the
Series A Issuer, or any preferred securities or any other securities of the
Series A Issuer or the Corporation which are substantially similar to the Series
A QUIPS, including any guarantee of such securities, or any securities
convertible into or exchangeable for or representing the right to receive
preferred securities or any such substantially similar securities of either the
Series A Issuer or the Corporation, without the prior written consent of the
Underwriters, except for the Series A QUIPS offered in connection with this
offering.
Prior to this offering, there has been no public market for the Series A
QUIPS. Application will be made to have the Series A QUIPS listed on the Nasdaq
National Market. Trading of the Series A QUIPS on the Nasdaq National Market is
expected to commence within a 30-day period after the initial delivery of the
Series A QUIPS. The Underwriters have advised the Corporation that they intend
to make a market in the Series A QUIPS prior to commencement of trading on the
Nasdaq National Market, but they are not obligated to do so and may discontinue
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for the Series A QUIPS.
The Corporation and the Series A Issuer have agreed to indemnify the
Underwriters against, or contribute to payments that the Underwriters may be
required to make in respect of, certain liabilities, including liabilities under
the Securities Act of 1933, as amended.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to the Corporation and its affiliates, for which the Underwriters or
their affiliates have received or will receive customary fees and commissions.
S-28
<PAGE> 29
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Series A
QUIPS, the enforceability of the Trust Agreement and the formation of the Series
A Issuer will be passed upon by Richards, Layton & Finger, special Delaware
counsel to the Corporation and the Series A Issuer. The validity of the Series A
Guarantee and the Series A Subordinated Debentures will be passed upon for the
Corporation by Sullivan & Cromwell, New York, New York and for the Underwriter
by Simpson Thacher & Bartlett (a partnership which includes professional
corporations), New York, New York. Certain other matters will be passed upon for
the Corporation by Harry A. Johnson, III, Esq., Executive Vice President and
General Counsel of the Corporation. Sullivan & Cromwell and Simpson Thacher &
Bartlett will rely on the opinion of Richards, Layton & Finger as to matters of
Delaware law and on the opinion of Mr. Johnson as to matters of Tennessee Law.
Certain matters relating to United States federal income tax considerations
described in this Prospectus Supplement will be passed upon for the Corporation
by Sullivan & Cromwell. At December 2, 1996, Mr. Johnson beneficially owned
approximately 73,700 shares of the Corporation's common stock.
S-29
<PAGE> 30
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 16, 1996
$300,000,000
FIRST TENNESSEE NATIONAL CORPORATION
JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES
FIRST TENNESSEE CAPITAL I
FIRST TENNESSEE CAPITAL II
FIRST TENNESSEE CAPITAL III
FIRST TENNESSEE CAPITAL IV
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY
GUARANTEED, AS DESCRIBED HEREIN, BY
FIRST TENNESSEE NATIONAL CORPORATION
First Tennessee National Corporation, a Tennessee corporation (the
"Corporation"), may from time to time offer in one or more series or issuances
its junior subordinated deferrable interest debentures (the "Junior Subordinated
Debentures"). The Junior Subordinated Debentures will be unsecured and
subordinate and junior in right of payment to Senior Indebtedness (as defined in
"Description of Junior Subordinated Debentures -- Subordination") of the
Corporation. If provided in an accompanying Prospectus Supplement, the
Corporation will have the right to defer payments of interest on any series of
Junior Subordinated Debentures by extending the interest payment period thereon
at any time or from time to time for up to such number of consecutive interest
payment periods (which shall not extend beyond the Stated Maturity (as defined
herein) of the Junior Subordinated Debentures) with respect to each deferral
period as may be specified in such Prospectus Supplement (each, an "Extension
Period"). In such circumstance, however, the Corporation would not be permitted,
subject to certain exceptions set forth herein, to declare or pay any dividends,
distributions or other payments with respect to, or repay, repurchase, redeem or
otherwise acquire, the Corporation's capital stock or debt securities that rank
pari passu with or junior to such series of Junior Subordinated Debentures. See
"Description of Junior Subordinated Debentures -- Option to Defer Interest
Payments" and "-- Restrictions on Certain Payments".
First Tennessee Capital I, First Tennessee Capital II, First Tennessee
Capital III and First Tennessee Capital IV, each a trust created under the laws
of the State of Delaware (each, an "Issuer," and collectively, the "Issuers"),
may severally offer, from time to time, preferred securities (the "Preferred
Securities") representing beneficial ownership interests in such Issuer. The
Corporation will be the owner of the common securities (the "Common Securities"
and, together with the Preferred Securities, the "Trust Securities")
representing common beneficial ownership interests in such Issuer. Holders of
the Preferred Securities will be entitled to receive preferential cumulative
cash distributions ("Distributions") accumulating from the date of original
issuance and payable periodically as specified in an accompanying Prospectus
Supplement.
Concurrently with the issuance by an Issuer of its Preferred Securities,
such Issuer will invest the proceeds thereof and the proceeds of contributions
received in respect of the Common Securities in a corresponding series of the
Corporation's Junior Subordinated Debentures (the "Corresponding Junior
Subordinated Debentures") with terms corresponding to the terms of that Issuer's
Preferred Securities (the "Related Preferred Securities"). Accordingly, if, as
provided in an accompanying Prospectus
(continued on next page)
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
INSURED BY 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.
---------------------
The date of this Prospectus is , 1996.
<PAGE> 31
(cover page continued)
Supplement, the Corporation has the right to defer the payment of interest on a
series of Corresponding Junior Subordinated Debentures, then, if interest
payments are so deferred, Distributions on the Related Preferred Securities
would also be deferred, but would continue to accumulate at the rate per annum
set forth in the related Prospectus Supplement. See "Description of Preferred
Securities -- Distributions".
Taken together, the Corporation's obligations under each series of
Corresponding Junior Subordinated Debentures, the Indenture and the related
Trust Agreement and the related Guarantee (each, as defined herein), in the
aggregate, provide a full, irrevocable and unconditional guarantee of payments
of Distributions and other amounts due on the Related Preferred Securities. See
"Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees -- Full and Unconditional Guarantee".
The payment of Distributions with respect to the Preferred Securities of each
Issuer and payments on liquidation of such Issuer or redemption of such
Preferred Securities, in each case out of funds held by such Issuer, are each
irrevocably guaranteed by the Corporation to the extent described herein (each,
a "Guarantee"). See "Description of Guarantees". The obligations of the
Corporation under each Guarantee will be unsecured and subordinate and junior in
right of payment to all Senior Indebtedness of the Corporation.
The Corresponding Junior Subordinated Debentures will be the sole assets of
each Issuer, and payments under the Corresponding Junior Subordinated Debentures
and the related Expense Agreement will be the only revenue of each Issuer. If so
provided in an accompanying Prospectus Supplement, the Corporation may redeem
the Corresponding Junior Subordinated Debentures (and thereby cause the
redemption of the Trust Securities) or may terminate each Issuer and, after
satisfaction of liabilities to the creditors of such Issuer as required by
applicable law, cause the Corresponding Junior Subordinated Debentures to be
distributed to the holders of the Trust Securities in exchange therefor upon
liquidation of their interests in such Issuer. The Corporation has committed to
the Federal Reserve Bank of St. Louis (the "Reserve Bank") that the Corporation
will not take any such action without having received the prior approval of the
Board of Governors of the Federal Reserve System (the "Federal Reserve") to do
so, if then required under applicable Federal Reserve capital guidelines or
policies. See "Description of Preferred Securities -- Liquidation Distribution
Upon Termination".
The Junior Subordinated Debentures and Preferred Securities may be offered
in amounts, at prices and on terms to be determined at the time of offering;
provided, however, the aggregate initial public offering price of all Junior
Subordinated Debentures (other than Corresponding Junior Subordinated
Debentures) and Preferred Securities (including the Corresponding Junior
Subordinated Debentures) issued pursuant to the Registration Statement of which
this Prospectus forms a part shall not exceed $300,000,000. Certain specific
terms of the Junior Subordinated Debentures or Preferred Securities in respect
of which this Prospectus is being delivered will be described in an accompanying
Prospectus Supplement, including without limitation and where applicable and to
the extent not set forth herein, (a) in the case of Junior Subordinated
Debentures, the specific designation, aggregate principal amount, denominations,
Stated Maturity (including any provisions for the shortening or extension
thereof), interest payment dates, interest rate (which may be fixed or variable)
or method of calculating interest, if any, applicable Extension Period or
interest deferral terms, if any, place or places where principal, premium, if
any, and interest, if any, will be payable, any terms of redemption, any sinking
fund provisions, terms for any conversion or exchange into other securities,
initial offering or purchase price, methods of distribution and any other
special terms, and (b) in the case of Preferred Securities, the identity of the
Issuer, specific title, aggregate stated liquidation amount, number of
securities, Distribution rate or method of calculating such rate, Distribution
payment dates, applicable Distribution deferral terms, if any, place or places
where Distributions will be payable, any terms of redemption, exchange, initial
offering or purchase price, methods of distribution and any other special terms.
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<PAGE> 32
The Prospectus Supplement also will contain information, as applicable,
about certain United States federal income tax consequences relating to the
Junior Subordinated Debentures or Preferred Securities.
The Junior Subordinated Debentures and Preferred Securities may be sold to
or through underwriters, through dealers, remarketing firms or agents or
directly to purchasers. See "Plan of Distribution." The names of any
underwriters, dealers, remarketing firms or agents involved in the sale of
Junior Subordinated Debentures or Preferred Securities in respect of which this
Prospectus is being delivered and any applicable fee, commission or discount
arrangements with them will be set forth in a Prospectus Supplement. The
Prospectus Supplement will state whether the Junior Subordinated Debentures or
Preferred Securities will be listed on any national securities exchange or
automated quotation system. If the Junior Subordinated Debentures or Preferred
Securities are not listed on any national securities exchange or automated
quotation system, there can be no assurance that there will be a secondary
market for the Junior Subordinated Debentures or Preferred Securities.
This Prospectus may not be used to consummate sales of Junior Subordinated
Debentures or Preferred Securities unless accompanied by a Prospectus
Supplement.
AVAILABLE INFORMATION
The Corporation 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 "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, 13th Floor, Suite 1300, New York,
New York 10048 and Suite 1400, Citicorp Center, 14th Floor, 500 West Madison
Street, Chicago, Illinois 60661. Copies of such material can also be obtained at
prescribed rates by writing to the Public Reference Section of the Commission at
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Certain of such
material may also be accessed electronically by means of the Commission's home
page on the Internet at http://www.sec.gov.
The Corporation and the Issuers have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as permitted
by the rules and regulations of the Commission. For further information with
respect to the Corporation and the securities offered hereby, reference is made
to the Registration Statement and the exhibits and the financial statements,
notes and schedules filed as a part thereof or incorporated by reference
therein, which may be inspected at the public reference facilities of the
Commission at the addresses set forth above or, with respect to certain of the
information, through the Commission's home page on the Internet. Statements made
in this Prospectus concerning the contents of any documents referred to herein
are not necessarily complete, and in each instance are qualified in all respects
by reference to the copy of such document filed as an exhibit to the
Registration Statement.
No separate financial statements of any Issuer have been included herein.
The Corporation and the Issuers do not consider that such financial statements
would be material to holders of the Preferred Securities because each Issuer is
a newly formed special purpose entity, has no operating history or independent
operations and is not engaged in and does not propose to engage in any activity
other than holding as trust assets the Corresponding Junior Subordinated
Debentures of the Corporation and issuing the Trust Securities. See "The
Issuers", "Description of Preferred Securities," "Description of Junior
Subordinated Debentures -- Corresponding Junior Subordi-
3
<PAGE> 33
nated Debentures" and "Description of Guarantees". In addition, the Corporation
does not expect that any of the Issuers will be filing reports under the
Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are
incorporated into this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31, 1995 and
Amendment No. 1 thereto on Form 10-K/A, filed June 28, 1996.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996 and September 30, 1996.
Each document or report filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of any offering of securities made by this Prospectus shall be
deemed to be incorporated by reference into this Prospectus and to be a part of
this Prospectus from the date of filing of such document. Any statement
contained herein, or in a document all or a portion of which is incorporated or
deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of the Registration Statement and 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 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 the Registration Statement or this Prospectus.
The Corporation will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference herein (other
than exhibits not specifically incorporated by reference into the texts of such
documents). Requests for such documents should be directed to: First Tennessee
National Corporation, 165 Madison Avenue, Memphis, Tennessee 38103, Attention:
Treasurer, telephone number (901) 523-5630.
FIRST TENNESSEE NATIONAL CORPORATION
The Corporation is a Tennessee corporation incorporated in 1968 and
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended (the "BHCA"). Through First Tennessee Bank National Association (the
"Bank") and its other subsidiaries, the Corporation provides a broad range of
financial services. At September 30, 1996, the Corporation had consolidated
total assets of approximately $12.8 billion and consolidated total deposits of
approximately $9.1 billion. As of September 30, 1996, the Corporation was one of
the 50 largest bank holding companies in the United States in asset size and
market capitalization.
The Corporation's principal subsidiary is the Bank, which as of September
30, 1996 was the largest commercial bank headquartered in Tennessee both in
terms of total assets and deposits. At September 30, 1996, the Bank had total
assets of approximately $11.8 billion and total deposits of approximately $8.3
billion. The Corporation through its banking subsidiaries conducts a broad range
of retail and commercial banking and fiduciary services and had 241 banking
locations in Tennessee and 10 locations in northern Mississippi and 8 in
northwest Arkansas at September 30, 1996. The Corporation provides mortgage
banking services in 28 states. Through the Bank and its other subsidiaries, the
Corporation offers a comprehensive range of financial services, including
general banking services, mortgage banking, bond broker/agency services, credit
card products, merchant credit card processing, nation-wide check clearing,
integrated check processing solutions, trust services, brokerage, venture
capital, and credit life insurance. Bond broker/agency services provided by the
Bank consist primarily of the sale and underwriting of bank-eligible securities
and mortgage loans and providing advisory services to other financial
institutions.
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<PAGE> 34
The Corporation 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. The
Corporation's principal executive officers are located at 165 Madison Avenue,
Memphis, Tennessee 38103; telephone (901) 523-4444.
CERTAIN REGULATORY CONSIDERATIONS
The following discussion sets forth certain of the elements of the
comprehensive regulatory framework applicable to bank holding companies and
banks and provides certain specific information relevant to the Corporation and
its subsidiaries. Federal regulation of financial institutions such as the
Corporation and its subsidiaries is intended primarily for the protection of
depositors and the Federal Deposit Insurance Corporation Bank Insurance Fund
rather than shareholders or other creditors. See also "Available Information"
and "Incorporation of Certain Documents by Reference". To the extent that the
following information describes statutory and regulatory provisions, it is
qualified in its entirety by reference to the applicable statutory and
regulatory provisions. A change in applicable statutes, regulations or
regulatory policy may have a material effect on the business of the Corporation.
GENERAL
As a bank holding company, the Corporation is subject to the regulation and
supervision of the Federal Reserve under the BHCA. Under the BHCA, bank holding
companies may not in general directly or indirectly acquire the ownership or
control of more than 5% of the voting shares or substantially all of the assets
of any company, including a bank, without the prior approval of the Federal
Reserve Board. The BHCA also restricts the types of activities in which a bank
holding company and its subsidiaries may engage. Generally, activities are
limited to banking and activities found by the Federal Reserve to be so closely
related to banking as to be a proper incident thereto.
In addition, the BHCA permits the Federal Reserve to approve an application
by a bank holding company to acquire a bank located outside the acquiror's
principal state of operations without regard to whether the transaction is
prohibited under state law. See "-- Interstate Banking and Branching
Legislation". Effective September 29, 1995, the Tennessee Bank Structure Act of
1974 was amended to, among other things, prohibit (subject to certain
exceptions) a bank holding company from acquiring a bank for which the home
state is Tennessee (a "Tennessee Bank") if, upon consummation, the company would
directly or indirectly control 30% or more of the total deposits in insured
depository institutions in Tennessee. As of December 31, 1995, the Corporation
estimates that it held approximately 13% of such deposits. Subject to certain
exceptions, the Tennessee Bank Structure Act prohibits a bank holding company
from acquiring a bank in Tennessee which has been in operation for less than
five years. Tennessee law permits a Tennessee Bank to establish branches in any
county in Tennessee. Management cannot predict the extent to which the business
of the Corporation and its subsidiaries may be affected by recent federal and
Tennessee legislation relating to interstate and intrastate acquisitions and
branching activities.
The Corporation's subsidiary banks (the "Subsidiary Banks") are subject to
supervision and examination by applicable federal and state banking agencies.
The Bank, First National Bank of Springdale, Springdale, Arkansas, and First
Tennessee Bank National Association Mississippi, Southaven, Mississippi, are
national banking associations, subject to regulation and supervision by the
Comptroller of the Currency (the "Comptroller") as their primary federal
regulator. The remaining Subsidiary Banks are Cleveland Bank and Trust Company,
Cleveland, Tennessee, and Peoples and Union Bank, Lewisburg, Tennessee, which
are Tennessee state-chartered banks, and Peoples Bank, Senatobia, Mississippi,
and Planters Bank, Tunica, Mississippi, which are Mississippi state-chartered
banks, none of which are members of the Federal Reserve System, and therefore
are subject to the regulations of and supervision by the Federal Deposit
Insurance Corporation (the "FDIC") as well as state banking authorities. In
addition, all of the Subsidiary Banks are insured by,
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<PAGE> 35
and subject to regulation by, the FDIC. The Subsidiary Banks are subject to
various requirements and restrictions under federal and state law, including
requirements to maintain reserves against deposits, restrictions on the types
and amounts of loans that may be granted and the interest that may be charged
thereon and limitations on the types of investments that may be made, activities
that may be engaged in, and types of services that may be offered. Various
consumer laws and regulations also affect the operations of the Subsidiary
Banks. In addition to the impact of such regulation, commercial banks are
affected significantly by the actions of the Federal Reserve as it attempts to
control the money supply and credit availability in order to influence the
economy.
PAYMENT OF DIVIDENDS
The Corporation is a legal entity separate and distinct from its banking
and other subsidiaries. The principal source of cash flow of the Corporation,
including cash flow to pay dividends on its stock or principal (premium, if any)
and interest on debt securities, is dividends from the Subsidiary Banks. There
are statutory and regulatory limitations on the payment of dividends by the
Subsidiary Banks to the Corporation, as well as by the Corporation to its
shareholders.
Each Subsidiary Bank that is a national bank is required by federal law to
obtain the prior approval of the Comptroller for the payment of dividends if the
total of all dividends declared by the board of directors of such Subsidiary
Bank in any year will exceed the total of (i) its net profits (as defined and
interpreted by regulation) for that year plus (ii) the retained net profits (as
defined and interpreted by regulation) for the preceding two years, less any
required transfers to surplus. A national bank also can pay dividends only to
the extent that retained net profits (including the portion transferred to
surplus) exceed bad debts (as defined by regulation).
State-chartered banks are subject to varying restrictions on the payment of
dividends under applicable state laws. Tennessee law imposes dividend
restrictions on Tennessee state banks substantially similar to those imposed
under federal law on national banks, as described above. Mississippi law
prohibits Mississippi state banks from declaring a dividend without the prior
written approval of the Mississippi Banking Commissioner.
If, in the opinion of the applicable federal bank regulatory authority, a
depository institution or a holding company is engaged in or is about to engage
in an unsafe or unsound practice (which, depending on the financial condition of
the depository institution or holding company, could include the payment of
dividends), such authority may require that such institution or holding company
cease and desist from such practice. The federal banking agencies have indicated
that paying dividends that deplete a depository institution's or holding
company's capital base to an inadequate level would be such an unsafe and
unsound banking practice. Moreover, the Federal Reserve, the Comptroller and the
FDIC have issued policy statements which provide that bank holding companies and
insured depository institutions generally should only pay dividends out of
current operating earnings.
In addition, under the Federal Deposit Insurance Act ("FDIA"), an
FDIC-insured depository institution may not make capital distributions
(including the payment of dividends) or pay any management fees to its holding
company or pay any dividend if it is undercapitalized or if such payment would
cause it to become undercapitalized.
At December 31, 1995, under dividend restrictions imposed under applicable
federal and state laws, the Subsidiary Banks, without obtaining regulatory
approval, could legally declare aggregate dividends of approximately $236
million.
The payment of dividends by the Corporation and the Subsidiary Banks may
also be affected or limited by other factors, such as the requirement to
maintain adequate capital above regulatory guidelines and debt covenants.
TRANSACTIONS WITH AFFILIATES
There are various legal restrictions on the extent to which the Corporation
and its nonbank subsidiaries can borrow or otherwise obtain credit from the
Subsidiary Banks. There are also legal
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<PAGE> 36
restrictions on the Subsidiary Banks' purchases of or investments in the
securities of and purchases of assets from the Corporation and its nonbank
subsidiaries, a Subsidiary Bank's loans or extensions of credit to third parties
collateralized by the securities or obligations of the Corporation and its
nonbank subsidiaries, the issuance of guarantees, acceptances and letters of
credit on behalf of the Corporation and its nonbank subsidiaries, and certain
bank transactions with the Corporation and its nonbank subsidiaries, or with
respect to which the Corporation and its nonbank subsidiaries act as agent,
participate or have a financial interest. Subject to certain limited exceptions,
a Subsidiary Bank (including for purposes of this paragraph all subsidiaries of
such Subsidiary Bank) may not extend credit to the Corporation or to any other
affiliate (other than another Subsidiary Bank and certain exempted affiliates)
in an amount which exceeds 10% of the Subsidiary Bank's capital stock and
surplus and may not extend credit in the aggregate to all such affiliates in an
amount which exceeds 20% of its capital stock and surplus. Further, there are
legal requirements as to the type, amount and quality of collateral which must
secure such extensions of credit by the Subsidiary Banks to the Corporation or
to such other affiliates. Also, extensions of credit and other transactions
between a Subsidiary Bank and the Corporation or other such affiliates must be
on terms and under circumstances, including credit standards, that are
substantially the same or at least as favorable to such Subsidiary Bank as those
prevailing at the time for comparable transactions with non-affiliated
companies. Also, the Corporation and its subsidiaries are prohibited from
engaging in certain tie-in arrangements in connection with any extension of
credit, lease or sale of property or furnishing of services.
CAPITAL ADEQUACY
The Federal Reserve has adopted risk-based capital guidelines for bank
holding companies. The minimum guideline for the ratio of total capital ("Total
Capital") to risk-weighted assets (including certain off-balance-sheet items,
such as standby letters of credit) is 8% and the minimum ratio of Tier 1 Capital
(defined below) to risk-weighted assets is 4%. At least half of the Total
Capital must be composed of common stock, minority interests in the equity
accounts of consolidated subsidiaries, noncumulative perpetual preferred stock
and a limited amount of cumulative perpetual preferred stock, less goodwill and
certain other intangible assets ("Tier 1 Capital"). The remainder may consist of
qualifying subordinated debt, certain types of mandatory convertible securities
and perpetual debt, other preferred stock and a limited amount of loan loss
reserves. At September 30, 1996, the Corporation's consolidated Tier 1 Capital
and Total Capital ratios were 9.14% and 12.02%, respectively.
In addition, the Federal Reserve has established minimum leverage ratio
guidelines for bank holding companies. These guidelines provide for a minimum
ratio of Tier 1 Capital to quarterly average assets, less goodwill and certain
other intangible assets (the "Leverage Ratio"), of 3% for bank holding companies
that meet certain specific criteria, including having the highest regulatory
rating. All other bank holding companies generally are required to maintain a
Leverage Ratio of at least 3%, plus an additional cushion of at least 100 to 200
basis points. The Corporation's Leverage Ratio at September 30, 1996 was 6.67%.
The guidelines also provide that bank holding companies experiencing internal
growth or making acquisitions will be expected to maintain strong capital
positions substantially above the minimum supervisory levels without significant
reliance on intangible assets. Furthermore, the Federal Reserve has indicated
that it will consider a "tangible Tier 1 Capital leverage ratio" (deducting all
intangibles) and other indicia of capital strength in evaluating proposals for
expansion or new activities.
Each of the Subsidiary Banks is subject to risk-based and leverage capital
requirements similar to those described above adopted by the Comptroller or the
FDIC, as the case may be. The Corporation believes that each of the Subsidiary
Banks was in compliance with applicable minimum capital requirements as of
September 30, 1996. Neither the Corporation nor any of the Subsidiary Banks has
been advised by any federal banking agency of any specific minimum Leverage
Ratio requirement applicable to it.
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Failure to meet capital guidelines could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restrictions on its business and in certain circumstances
to the appointment of a conservator or receiver. See "-- Prompt Corrective
Action".
The Federal Deposit Insurance Corporation Improvement Act of 1991 required
each federal banking agency to revise its risk-based capital standards within 18
months of enactment of the statute to ensure that those standards take adequate
account of interest rate risk, concentration of credit risk and the risk of
non-traditional activities, as well as reflect the actual performance and
expected risk of loss on multifamily mortgages. On December 15, 1994, the
federal banking agencies adopted amendments to their respective risk-based
capital requirements that explicitly identify concentration of credit risk and
certain risks arising from non-traditional activities, and the management of
such risks, as important factors to consider in assessing an institution's
overall capital adequacy. The amendments do not, however, mandate any specific
adjustments to the risk-based capital calculations as a result of such factors.
On August 2, 1995, the federal banking agencies published amendments to
their risk-based capital rules that, effective September 1, 1995, include
interest-rate risk as a qualitative factor to be considered in assessing capital
adequacy. Concurrent with the publication of the amendments, the federal banking
agencies proposed a system for measuring interest-rate risk and announced their
intention, after a trial period, to evaluate the reliability and accuracy of the
proposed system and to initiate a rulemaking process for the purpose of amending
the risk-based capital rules to include an explicit capital charge for
interest-rate risk that will be based upon the level of a bank's measured
interest-rate risk exposure.
In August 1996, the federal banking regulators adopted amendments to their
risk-based capital rules to incorporate a measure for market risk in foreign
exchange and commodity activities and in the trading of debt and equity
instruments. These amendments, which become effective at year end 1997, will
require banks with relatively large trading activities to calculate a capital
charge for market risk using their own internal value-at-risk models (subject to
parameters set by the regulators) or, alternatively, risk management techniques
developed by the regulators. As a result, in addition to existing capital
requirements for credit risk, certain institutions will be required to hold
capital based on the measure of their market risk exposure. These institutions
will be able to satisfy this additional requirement, in part, by issuing
short-term subordinated debt that qualifies as Tier 3 capital.
HOLDING COMPANY STRUCTURE AND SUPPORT OF SUBSIDIARY BANKS
Because the Corporation is a holding company, its right to participate in
the assets of any subsidiary upon the latter's liquidation or reorganization
will be subject to the prior claims of the subsidiary's creditors (including
depositors in the case of the Subsidiary Banks) except to the extent that the
Corporation may itself be a creditor with recognized claims against the
subsidiary. In addition, depositors of bank, and the FDIC as their subrogee,
would be entitled to priority over other creditors in the event of liquidation
of a bank subsidiary.
Under Federal Reserve policy, the Corporation is expected to act as a
source of financial strength to, and to commit resources to support, each of the
Subsidiary Banks. This support may be required at times when, absent such
Federal Reserve policy, the Corporation may not be inclined to provide it. In
addition, any capital loans by a bank holding company to any of its subsidiary
banks are subordinate in right of payment to deposits and to certain other
indebtedness of such subsidiary banks. In the event of a bank holding company's
bankruptcy, any commitment by the bank holding company to a federal bank
regulatory agency to maintain the capital of a subsidiary bank will be assumed
by the bankruptcy trustee and entitled to a priority of payment.
CROSS-GUARANTEE LIABILITY
Under the FDIA, a depository institution insured by the FDIC can be held
liable for any loss incurred by, or reasonably expected to be incurred by, the
FDIC after August 9, 1989 in connection
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with (i) the default of a commonly controlled FDIC-insured depository
institution or (ii) any assistance provided by the FDIC to any commonly
controlled FDIC-insured depository institution "in danger of default." "Default"
is defined generally as the appointment of a conservator or receiver and "in
danger of default" is defined generally as the existence of certain conditions
indicating that a default is likely to occur in the absence of regulatory
assistance. The FDIC's claim for damages is superior to claims of shareholders
of the insured depository institution or its holding company but is subordinate
to claims of depositors, secured creditors and holders of subordinated debt
(other than affiliates) of the commonly controlled insured depository
institution. The Subsidiary Banks are subject to these cross-guarantee
provisions. As a result, any loss suffered by the FDIC in respect of any of the
Subsidiary Banks would likely result in assertion of the cross-guarantee
provisions, the assessment of such estimated losses against the Corporation's
other Subsidiary Banks and a potential loss of the Corporation's investment in
such other Subsidiary Banks.
PROMPT CORRECTIVE ACTION
The FDIA requires, among other things, the federal banking regulators to
take "prompt corrective action" in respect of FDIC-insured depository
institutions that do not meet minimum capital requirements. Under the FDIA,
insured depository institutions are divided into five capital tiers: "well
capitalized," "adequately capitalized," "undercapitalized," "significantly
undercapitalized" and "critically undercapitalized." Under applicable
regulations, an institution is defined to be well capitalized if it maintains a
Leverage ratio of at least 5%, a Tier 1 Capital ratio of at least 6% and a Total
Capital ratio of at least 10% and is not subject to a directive, order or
written agreement to meet and maintain specific capital levels. An institution
is defined to be adequately capitalized if it meets all of the minimum capital
requirements as described above. An institution will be considered
undercapitalized if it fails to meet any minimum required measure; significantly
undercapitalized if it has a Total Risk-Based Capital Ratio of less than 6%, a
Tier 1 Risk-Based Capital Ratio of less than 3% or a Leverage Ratio of less than
3%; and critically undercapitalized if it fails to maintain a level of tangible
equity equal to at least 2% of total assets. An institution may be deemed to be
in a capitalization category that is lower than is indicated by its actual
capital position if it receives an unsatisfactory examination rating.
The FDIA generally prohibits a FDIC-insured depository institution from
making any capital distribution (including payment of dividends) or paying any
management fee to its holding company if the depository institution would
thereafter be undercapitalized. Undercapitalized depository institutions are
subject to restrictions on borrowing from the Federal Reserve System. In
addition, undercapitalized depository institutions are subject to growth
limitations and are required to submit capital restoration plans. An insured
depository institution's holding company must guarantee the capital plan, up to
an amount equal to the lesser of 5% of the depository institution's assets at
the time it becomes undercapitalized or the amount of the capital deficiency
when the institution fails to comply with the plan for the plan to be accepted
by the applicable federal regulatory authority. The federal banking agencies may
not accept a capital plan without determining, among other things, that the plan
is based on realistic assumptions and is likely to succeed in restoring the
depository institution's capital. If a depository institution fails to submit an
acceptable plan, it is treated as if it is significantly undercapitalized.
Significantly undercapitalized insured depository institutions may be
subject to a number of requirements and restrictions, including orders to sell
sufficient voting stock to become adequately capitalized, requirements to reduce
total assets and cessation of receipt of deposits from correspondent banks.
Critically undercapitalized insured depository institutions are subject to
appointment of a receiver or conservator, generally within 90 days of the date
on which they become critically undercapitalized.
The Corporation believes that at September 30, 1996 all of the Subsidiary
Banks had sufficient capital to qualify as "well capitalized" under the
regulatory capital requirements discussed above.
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INTERSTATE BANKING AND BRANCHING LEGISLATION
The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
(the "IBBEA") authorizes interstate acquisitions of banks and bank holding
companies without geographic limitation beginning one year after enactment. In
addition, beginning June 1, 1997, a bank may merge with a bank in another state
as long as neither of the states has opted out of interstate branching between
the date of enactment of the IBBEA and May 31, 1997. The IBBEA further provides
that states may enact laws permitting interstate merger transactions prior to
June 1, 1997. A bank may establish and operate a de novo branch in a state in
which the bank does not maintain a branch if that state expressly permits de
novo branching. Once a bank has established branches in a state through an
interstate merger transaction, the bank may establish and acquire additional
branches at any location in the state where any bank involved in the interstate
merger transaction could have established or acquired branches under applicable
federal or state law. A bank that has established a branch in a state through de
novo branching may establish and acquire additional branches in such state in
the same manner and to the same extent as a bank having a branch in such state
as a result of an interstate merger. If a state opts out of interstate branching
within the specified time period, no bank in any other state may establish a
branch in the opting out of state, whether through an acquisition or de novo.
FDIC INSURANCE ASSESSMENTS; DIFA
The FDIC reduced the insurance premiums it charges on bank deposits insured
by the Bank Insurance Fund ("BIF") to the statutory minimum of $2,000.00 for
"well capitalized" banks, effective January 1, 1996. Premiums related to
deposits assessed by the Savings Association Insurance Fund ("SAIF"), including
savings association deposits acquired by banks, continued to be assessed at a
rate of between 23 cents and 31 cents per $100.00 of deposits. On September 30,
1996, the Deposit Insurance Funds Act of 1996 ("DIFA") was enacted and signed
into law. DIFA provided for a special assessment to recapitalize the SAIF to
bring the SAIF up to statutory required levels. The assessment imposed a
one-time fee to banks that own previously acquired thrift deposits of $.526 per
$100 of thrift deposits they held at March 31, 1995. The pre-tax cost to the
Corporation of the one-time assessment in the third quarter of 1996 was $3.8
million. DIFA further provides for assessments to be imposed on insured
depository institutions with respect to deposits insured by the BIF (in addition
to assessments currently imposed on depository institutions with respect to
SAIF-insured deposits) to pay for the cost of Financing Corporation ("FICO")
bonds. All banks will be assessed to pay the interest due on FICO bonds starting
on January 1, 1997. The Corporation expects the cost to the Corporation to be
immaterial.
Under the FDIA, insurance of deposits may be terminated by the FDIC upon a
finding that the institution has engaged in unsafe and unsound practices, is in
an unsafe or unsound condition to continue operations or has violated any
applicable law, regulation, rule, order or condition imposed by a federal bank
regulatory agency.
DEPOSITOR PREFERENCE
Federal law provides that deposits and certain claims for administrative
expenses and employee compensation against an insured depository institution
would be afforded a priority over other general unsecured claims against such an
institution, including the Junior Subordinated Debentures, in the "liquidation
or other resolution" of such an institution by any receiver.
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THE ISSUERS
Each Issuer is a statutory business trust created under Delaware law
pursuant to (i) a trust agreement executed by the Corporation, as Depositor of
the Issuer, and the Delaware Trustee and two Administrative Trustees (as defined
herein) of such Issuer and (ii) the filing of a certificate of trust with the
Delaware Secretary of State. Each trust agreement will be amended and restated
in its entirety (each, as so amended and restated, a "Trust Agreement")
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. Each Trust Agreement will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Each Issuer exists for the exclusive purposes of (i) issuing
and selling its Trust Securities, (ii) using the proceeds from the sale of such
Trust Securities to acquire a series of Corresponding Junior Subordinated
Debentures issued by the Corporation, and (iii) engaging in only those other
activities necessary or incidental thereto (such as registering the transfer of
Trust Securities). Accordingly, the Corresponding Junior Subordinated Debentures
will be the sole assets of each Issuer, and payments under the Corresponding
Junior Subordinated Debentures will be the sole revenue of each Issuer.
All of the Common Securities of each Issuer will be owned by the
Corporation. The Common Securities of an Issuer will rank pari passu, and
payments will be made thereon pro rata, with the Preferred Securities of such
Issuer, except that upon the occurrence and continuance of an event of default
under a Trust Agreement resulting from an event of default under the Indenture,
the rights of the Corporation as holder of the Common Securities to payment in
respect of Distributions and payments upon liquidation or redemption will be
subordinated to the rights of the holders of the Preferred Securities of such
Issuer. See "Description of Preferred Securities -- Subordination of Common
Securities". The Corporation will acquire Common Securities in an aggregate
Liquidation Amount equal to not less than 3% of the total capital of each
Issuer.
Unless otherwise specified in the applicable Prospectus Supplement, each
Issuer has a maximum term of approximately 55 years, but may terminate earlier
as provided in the applicable Trust Agreement. Each Issuer's business and
affairs are conducted by its trustees, each appointed by the Corporation as
holder of the Common Securities. The trustees for each Issuer will be The Bank
of New York, as the Property Trustee (the "Property Trustee"), The Bank of New
York (Delaware), as the Delaware Trustee (the "Delaware Trustee"), and two
individual trustees (the "Administrative Trustees") who are employees or
officers of or affiliated with the Corporation (collectively, the "Issuer
Trustees"). The Bank of New York, as Property Trustee, will act as sole trustee
under each Trust Agreement for purposes of compliance with the Trust Indenture
Act. The Bank of New York will also act as trustee under the Guarantees and the
Indenture. See "Description of Guarantees" and "Description of Junior
Subordinated Debentures". The holder of the Common Securities of an Issuer, or
the holders of a majority in Liquidation Amount of the Related Preferred
Securities if an event of default under the Trust Agreement for such Issuer has
occurred and is continuing, will be entitled to appoint, remove or replace the
Property Trustee and/or the Delaware Trustee for such Issuer. In no event will
the holders of the Preferred Securities have the right to vote to appoint,
remove or replace the Administrative Trustees; such voting rights are vested
exclusively in the holder of the Common Securities. The duties and obligations
of each of the Issuer Trustees are governed by the applicable Trust Agreement.
The Corporation will pay all fees and expenses related to each Issuer and the
offering of the Preferred Securities and will pay, directly or indirectly, all
ongoing costs, expenses and liabilities of each Issuer.
The principal executive office of each Issuer is 165 Madison Avenue,
Memphis, Tennessee 38103 and its telephone number is (901) 523-5630.
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USE OF PROCEEDS
Except as otherwise set forth in the applicable Prospectus Supplement, the
Corporation intends to use the proceeds from the sale of its Junior Subordinated
Debentures (including Corresponding Junior Subordinated Debentures issued to an
Issuer in connection with the investment by such Issuer of all of the proceeds
from the sale of Trust Securities) for general corporate purposes, including,
but not limited to, stock repurchases, the reduction of indebtedness,
investments in or extensions of credit to existing and future subsidiaries and
the financing of acquisitions or such other uses as may be set forth in the
applicable Prospectus Supplement.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or more series
under a Junior Subordinated Indenture, as supplemented from time to time (as so
supplemented, the "Indenture"), between the Corporation and The Bank of New
York, as trustee (the "Debenture Trustee"). This summary of certain terms and
provisions of the Junior Subordinated Debentures, Corresponding Junior
Subordinated Debentures and the Indenture, which summarizes the material
provisions thereof, does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the Indenture, the form of which is
filed as an exhibit to the Registration Statement of which this Prospectus forms
a part, and to the Trust Indenture Act, to each of which reference is hereby
made. The Indenture is qualified under the Trust Indenture Act. Whenever
particular defined terms of the Indenture (as supplemented or amended from time
to time) are referred to herein or in a Prospectus Supplement, such defined
terms are incorporated herein or therein by reference.
GENERAL
Each series of Junior Subordinated Debentures will rank pari passu with all
other series of Junior Subordinated Debentures and will be unsecured and
subordinate and junior in right of payment to the extent and in the manner set
forth in the Indenture to all Senior Indebtedness (as defined below) of the
Corporation. See "-- Subordination". Because the Corporation is a holding
company, the right of the Corporation to participate in any distribution of
assets of any subsidiary, including the Bank, upon such subsidiary's liquidation
or reorganization or otherwise, is subject to the prior claims of creditors of
the subsidiary, except to the extent the Corporation may itself be recognized as
a creditor of that subsidiary. Accordingly, the Junior Subordinated Debentures
will be effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Junior Subordinated Debentures should
look only to the assets of the Corporation for payments on the Junior
Subordinated Debentures. Except as otherwise provided in the applicable
Prospectus Supplement, the Indenture does not limit the incurrence or issuance
of other secured or unsecured debt of the Corporation, including Senior
Indebtedness, whether under the Indenture, any other existing indenture or any
other indenture that the Corporation may enter into in the future or otherwise.
See "-- Subordination" and the applicable Prospectus Supplement relating to any
offering of Preferred Securities or Junior Subordinated Debentures.
The Junior Subordinated Debentures will be issuable in one or more series
pursuant to an indenture supplemental to the Indenture or a resolution of the
Corporation's Board of Directors or a committee thereof.
The applicable Prospectus Supplement will describe the following terms of
the Junior Subordinated Debentures: (1) the title of the Junior Subordinated
Debentures; (2) any limit upon the aggregate principal amount of the Junior
Subordinated Debentures; (3) the date or dates on which the principal of the
Junior Subordinated Debentures is payable (the "Stated Maturity") or the method
of determination thereof; (4) the rate or rates, if any, at which the Junior
Subordinated Debentures shall bear interest, the dates on which any such
interest shall be payable (the "Interest Payment Dates"), the right, if any, of
the Corporation to defer or extend an Interest Payment Date,
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and the record dates for any interest payable on any Interest Payment Date (the
"Regular Record Dates") or the method by which any of the foregoing shall be
determined; (5) the place or places where, subject to the terms of the Indenture
as described below under "-- Payment and Paying Agents," the principal of and
premium, if any, and interest on the Junior Subordinated Debentures will be
payable and where, subject to the terms of the Indenture as described below
under "-- Denominations, Registration and Transfer," the Junior Subordinated
Debentures may be presented for registration of transfer or exchange and the
place or places where notices and demands to or upon the Corporation in respect
of the Junior Subordinated Debentures and the Indentures may be made ("Place of
Payment"); (6) any period or periods within which, or date or dates on which,
the price or prices at which and the terms and conditions upon which Junior
Subordinated Debentures may be redeemed, in whole or in part, at the option of
the Corporation or a holder thereof; (7) the obligation or the right, if any, of
the Corporation or a holder thereof to redeem, purchase or repay the Junior
Subordinated Debentures and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or units)
in which and the other terms and conditions upon which the Junior Subordinated
Debentures shall be redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation; (8) the denominations in which any Junior Subordinated
Debentures shall be issuable if other than denominations of $25 and any integral
multiple thereof; (9) if other than in U.S. Dollars, the currency or currencies
(including currency unit or units) in which the principal of (and premium, if
any) and interest, if any, on the Junior Subordinated Debentures shall be
payable, or in which the Junior Subordinated Debentures shall be denominated;
(10) any additions, modifications or deletions in the events of default under
the Indenture or covenants of the Corporation specified in the Indenture with
respect to the Junior Subordinated Debentures; (11) if other than the principal
amount thereof, the portion of the principal amount of Junior Subordinated
Debentures that shall be payable upon declaration of acceleration of the
maturity thereof; (12) any additions or changes to the Indenture with respect to
a series of Junior Subordinated Debentures as shall be necessary to permit or
facilitate the issuance of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; (13) any
index or indices used to determine the amount of payments of principal of and
premium, if any, on the Junior Subordinated Debentures and the manner in which
such amounts will be determined; (14) the terms and conditions relating to the
issuance of a temporary Global Security representing all of the Junior
Subordinated Debentures of such series and the exchange of such temporary Global
Security for definitive Junior Subordinated Debentures of such series; (15)
subject to the terms described herein under "-- Global Junior Subordinated
Debentures," whether the Junior Subordinated Debentures of the series shall be
issued in whole or in part in the form of one or more Global Securities and, in
such case, the depositary for such Global Securities, which depositary shall be
a clearing agency registered under the Exchange Act; (16) the appointment of any
paying agent or agents; (17) the terms and conditions of any obligation or right
of the Corporation or a holder to convert or exchange the Junior Subordinated
Debentures into Preferred Securities; (18) the form of Trust Agreement and
Guarantee Agreement, if applicable; and (19) any other terms of the Junior
Subordinated Debentures not inconsistent with the provisions of the Indenture.
Junior Subordinated Debentures may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. Certain United States federal
income tax consequences and special considerations applicable to any such Junior
Subordinated Debentures will be described in the applicable Prospectus
Supplement.
If the purchase price of any of the Junior Subordinated Debentures is
payable in one or more foreign currencies or currency units or if any Junior
Subordinated Debentures are denominated in one or more foreign currencies or
currency units or if the principal of, premium, if any, or interest on any
Junior Subordinated Debentures is payable in one or more foreign currencies or
currency units, the restrictions, elections, certain United States federal
income tax consequences, specific terms
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and other information with respect to such series of Junior Subordinated
Debentures and such foreign currency or currency units will be set forth in the
applicable Prospectus Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Junior Subordinated Debentures,
special United States federal income tax, accounting and other considerations
applicable thereto will be described in the applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the
Junior Subordinated Debentures will be issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. Junior
Subordinated Debentures of any series will be exchangeable for other Junior
Subordinated Debentures of the same issue and series, of any authorized
denominations, of a like aggregate principal amount, of the same original issue
date and stated maturity and bearing the same interest rate.
Junior Subordinated Debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with the form of
transfer endorsed thereon, or a satisfactory written instrument of transfer,
duly executed), at the office of the appropriate securities registrar or at the
office of any transfer agent designated by the Corporation for such purpose with
respect to any series of Junior Subordinated Debentures and referred to in the
applicable Prospectus Supplement, without service charge and upon payment of any
taxes and other governmental charges as described in the Indenture. The
Corporation will appoint the Trustee as securities registrar under the
Indenture. If the applicable Prospectus Supplement refers to any transfer agents
(in addition to the securities registrar) initially designated by the
Corporation with respect to any series of Junior Subordinated Debentures, the
Corporation may at any time rescind the designation of any such transfer agent
or approve a change in the location through which any such transfer agent acts,
provided that the Corporation maintains a transfer agent in each place of
payment for such series. The Corporation may at any time designate additional
transfer agents with respect to any series of Junior Subordinated Debentures.
In the event of any redemption, neither the Corporation nor the Debenture
Trustee shall be required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures of any series during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption of
Junior Subordinated Debentures of that series and ending at the close of
business on the day of such mailing of the relevant notice of redemption or (ii)
transfer or exchange any Junior Subordinated Debentures selected for redemption,
except, in the case of any Junior Subordinated Debentures being redeemed in
part, any portion thereof not to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of a series may be issued in whole or in
part in the form of one or more Global Junior Subordinated Debentures that will
be deposited with, or on behalf of, a depositary (the "Depositary") identified
in the Prospectus Supplement relating to such series. Global Junior Subordinated
Debentures may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Junior Subordinated Debentures represented thereby, a Global Junior
Subordinated Debenture may not be transferred except as a whole by the
Depositary for such Global Junior Subordinated Debenture to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by the Depositary or any nominee to a successor
Depositary or any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series
of Junior Subordinated Debentures will be described in the Prospectus Supplement
relating to such series. The
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Corporation anticipates that the following provisions will generally apply to
depositary arrangements.
Upon the issuance of a Global Junior Subordinated Debenture, and the
deposit of such Global Junior Subordinated Debenture with or on behalf of the
Depositary, the Depositary for such Global Junior Subordinated Debenture or its
nominee will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual Junior Subordinated Debentures
represented by such Global Junior Subordinated Debenture to the accounts of
persons that have accounts with such Depositary ("Participants"). Such accounts
shall be designated by the dealers, underwriters or agents with respect to such
Junior Subordinated Debentures or by the Corporation if such Junior Subordinated
Debentures are offered and sold directly by the Corporation. Ownership of
beneficial interests in a Global Junior Subordinated Debenture will be limited
to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Junior Subordinated Debenture
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by the applicable Depositary or its nominee (with
respect to interests of Participants) and the records of Participants (with
respect to interests of persons who hold through Participants). The laws of some
states require that certain purchasers of securities take physical delivery of
such securities in definitive form. Such limits and such laws may impair the
ability to transfer beneficial interests in a Global Junior Subordinated
Debenture.
So long as the Depositary for a Global Junior Subordinated Debenture, or
its nominee, is the registered owner of such Global Junior Subordinated
Debenture, such Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Junior Subordinated Debentures
represented by such Global Junior Subordinated Debenture for all purposes under
the Indenture governing such Junior Subordinated Debentures. Except as provided
below, owners of beneficial interests in a Global Junior Subordinated Debenture
will not be entitled to have any of the individual Junior Subordinated
Debentures of the series represented by such Global Junior Subordinated
Debenture registered in their names, will not receive or be entitled to receive
physical delivery of any such Junior Subordinated Debentures of such series in
definitive form and will not be considered the owners or holders thereof under
the Indenture.
Payments of principal of (and premium, if any) and interest on individual
Junior Subordinated Debentures represented by a Global Junior Subordinated
Debenture registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner of
the Global Junior Subordinated Debenture representing such Junior Subordinated
Debentures. None of the Corporation, the Debenture Trustee, any Paying Agent, or
the Securities Registrar for such Junior Subordinated Debentures will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global Junior
Subordinated Debenture representing such Junior Subordinated Debentures or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Corporation expects that the Depositary for a series of Junior
Subordinated Debentures or its nominee, upon receipt of any payment of
principal, premium, if any, or interest in respect of a permanent Global Junior
Subordinated Debenture representing any of such Junior Subordinated Debentures,
immediately will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the principal amount of
such Global Junior Subordinated Debenture for such Junior Subordinated
Debentures as shown on the records of such Depositary or its nominee. The
Corporation also expects that payments by Participants to owners of beneficial
interests in such Global Junior Subordinated Debenture held through such
Participants will be governed by standing instructions and customary practices,
as is now the case with securities held for the accounts of customers in bearer
form or registered in "street name." Such payments will be the responsibility of
such Participants.
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Unless otherwise specified in the applicable Prospectus Supplement, if a
Depositary for a series of Junior Subordinated Debentures is at any time
unwilling, unable or ineligible to continue as depositary and a successor
depositary is not appointed by the Corporation within 90 days, the Corporation
will issue individual Junior Subordinated Debentures of such series in exchange
for the Global Junior Subordinated Debenture representing such series of Junior
Subordinated Debentures. In addition, the Corporation may at any time and in its
sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Junior Subordinated Debentures, determine not to
have any Junior Subordinated Debentures of such series represented by one or
more Global Junior Subordinated Debentures and, in such event, will issue
certificated Junior Subordinated Debentures of such series in exchange for the
Global Junior Subordinated Debenture. Further, if the Corporation so specifies
with respect to the Junior Subordinated Debentures of a series, an owner of a
beneficial interest in a Global Junior Subordinated Debenture representing
Junior Subordinated Debentures of such series may, on terms acceptable to the
Corporation, the Debenture Trustee and the Depositary for such Global Junior
Subordinated Debenture, receive certificated Junior Subordinated Debentures of
such series in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to such Junior
Subordinated Debentures. In any such instance, an owner of a beneficial interest
in a Global Junior Subordinated Debenture will be entitled to physical delivery
of certificated Junior Subordinated Debentures of the series represented by such
Global Junior Subordinated Debenture equal in principal amount to such
beneficial interest and to have such Junior Subordinated Debentures registered
in its name. Individual Junior Subordinated Debentures of such series so issued
will be issued in denominations, unless otherwise specified by the Corporation,
of $25 and integral multiples thereof.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and premium, if any) and any interest on Junior Subordinated
Debentures will be made at the office of the Debenture Trustee in The City of
New York or at the office of such paying agent or paying agents as the
Corporation may designate from time to time in the applicable Prospectus
Supplement, except that at the option of the Corporation payment of any interest
may be made (i) except in the case of Global Junior Subordinated Debentures, by
check mailed to the address of the person entitled thereto as such address shall
appear in the securities register or (ii) by wire transfer or direct deposit to
an account maintained by the person entitled thereto as specified in the
securities register, provided that proper transfer instructions have been
received by the Regular Record Date. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of any interest on Junior Subordinated
Debentures will be made to the person in whose name such Junior Subordinated
Debenture is registered at the close of business on the Regular Record Date for
such interest, except in the case of defaulted interest. The Corporation may at
any time designate additional paying agents or rescind the designation of any
paying agent; however the Corporation will at all times be required to maintain
a paying agent in each place of payment for each series of Junior Subordinated
Debentures.
Any moneys deposited with the Debenture Trustee or any paying agent, or
then held by the Corporation in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall, at the request of the Corporation, be repaid
to the Corporation and the holder of such Junior Subordinated Debenture shall
thereafter look, as a general unsecured creditor, only to the Corporation for
payment thereof.
OPTION TO DEFER INTEREST PAYMENTS
If provided in the applicable Prospectus Supplement, the Corporation will
have the right at any time and from time to time during the term of any series
of Junior Subordinated Debentures to defer
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payment of interest for up to such number of consecutive interest payment
periods as may be specified in the applicable Prospectus Supplement (each, an
"Extension Period"), subject to the terms, conditions and covenants, if any,
specified in such Prospectus Supplement, provided that such Extension Period may
not extend beyond the Stated Maturity of such series of Junior Subordinated
Debentures. Certain United States federal income tax consequences and special
considerations applicable to any such Junior Subordinated Debentures will be
described in the applicable Prospectus Supplement.
REDEMPTION
Unless otherwise indicated in the applicable Prospectus Supplement, Junior
Subordinated Debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporation may, at its option, redeem the Junior Subordinated Debentures of any
series in whole at any time or in part from time to time. If the Junior
Subordinated Debentures of any series are so redeemable only on or after a
specified date or upon the satisfaction of additional conditions, the applicable
Prospectus Supplement will specify such date or describe such conditions. Junior
Subordinated Debentures in denominations larger than $25 may be redeemed in part
but only in integral multiples of $25. Except as otherwise specified in the
applicable Prospectus Supplement, the redemption price for any Junior
Subordinated Debenture so redeemed shall equal any accrued and unpaid interest
thereon to the redemption date, plus 100% of the principal amount thereof. The
Corporation has committed to the Reserve Bank that it will not cause any such
redemption without having received the prior approval of the Federal Reserve to
do so, if then required under applicable Federal Reserve capital guidelines or
policies.
Except as otherwise specified in the applicable Prospectus Supplement, if a
Debenture Tax Event (as defined below) in respect of a series of Junior
Subordinated Debentures or a Capital Treatment Event (as defined herein) shall
occur and be continuing, the Corporation may, at its option, redeem such series
of Junior Subordinated Debentures in whole (but not in part) at any time within
90 days following the occurrence of such Debenture Tax Event or Capital
Treatment Event, at a redemption price equal to 100% of the principal amount of
such Junior Subordinated Debentures then outstanding plus accrued and unpaid
interest to the date fixed for redemption. The Corporation has committed to the
Reserve Bank that it will not cause any such redemption without having received
the prior approval of the Federal Reserve to do so, if then required under
applicable Federal Reserve capital guidelines or policies.
"Tax Event" with respect to Junior Subordinated Debentures held by an
Issuer means the receipt by the Issuer of a series of Preferred Securities of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced proposed change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of such Preferred Securities under the Trust Agreement, there
is more than an insubstantial risk that (i) such Issuer is, or will be within 90
days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the corresponding series of
Corresponding Junior Subordinated Debentures, (ii) interest payable by the
Corporation on such series of Corresponding Junior Subordinated Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Corporation, in whole or in part, for United States federal income tax
purposes, or (iii) such Issuer is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges. With respect to Junior Subordinated Debentures not
held by an Issuer, "Tax Event" means the receipt by the Corporation of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any
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announced proposed change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which proposed change, pronouncement or decision is
announced on or after the date of issuance of the applicable series of Junior
Subordinated Debentures under the Indenture, there is more than an insubstantial
risk that interest payable by the Corporation on such series of Junior
Subordinated Debentures is not, or within 90 days of the date of such opinion
will not be, deductible by the Corporation, in whole or in part, for United
States federal income tax purposes.
A "Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of any amendment to, or change (including any
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such proposed change, pronouncement, action or decision is
announced on or after the date of issuance of the applicable Preferred
Securities under the applicable Trust Agreement, there is more than an
insubstantial risk that the Corporation will not be entitled to treat an amount
equal to the Liquidation Amount of the applicable Preferred Securities as "Tier
I Capital" (or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Corporation.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Junior Subordinated
Debentures to be redeemed at its registered address. Unless the Corporation
defaults in payment of the redemption price, on and after the redemption date
interest ceases to accrue on such Junior Subordinated Debentures or portions
thereof called for redemption.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation will also covenant, as to each series of Junior
Subordinated Debentures, that it will not, and will not permit any subsidiary of
the Corporation to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Corporation's capital stock, (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of the
Corporation (including other series of Junior Subordinated Debentures) that rank
pari passu with or junior in interest to the Junior Subordinated Debentures or
(iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation if such
guarantee ranks pari passu with or junior in interest to the Junior Subordinated
Debentures (other than (a) dividends or distributions in capital stock of the
Corporation, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the redemption or repurchase
of any such rights pursuant thereto, (c) payments under any Guarantee with
respect to the series of Related Preferred Securities and (d) purchases of
common stock related to the issuance of common stock or rights or options under
any of the Corporation's benefit plans for its directors, officers, employees or
other persons within the definition of "employee" for purposes of a registration
of shares for an employee benefit plan of the Corporation, related to the
issuance of common stock or rights under a dividend reinvestment and stock
purchase plan, or related to the issuance of common stock (or securities
convertible into or exchangeable for common stock) as consideration in an
acquisition transaction) if at such time (i) there shall have occurred any event
of which the Corporation has actual knowledge (a) that with the giving of notice
or the lapse of time, or both, would constitute an "Event of Default" under the
Indenture with respect to the Junior Subordinated Debentures of such series and
(b) in respect of which the Corporation shall not have taken reasonable steps to
cure, (ii) if such Junior Subordinated Debentures are held by an Issuer of a
series of Related Preferred Securities, the Corporation shall be in default with
respect to its payment of any obligations under
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the Guarantee relating to such Related Preferred Securities or (iii) the
Corporation shall have given notice of its selection of an Extension Period as
provided in the Indenture with respect to the Junior Subordinated Debentures of
such series and shall not have rescinded such notice, and such Extension Period,
or any extension thereof, shall be continuing.
MODIFICATION OF INDENTURE
From time to time the Corporation and the Debenture Trustee may, without
the consent of the holders of any series of Junior Subordinated Debentures,
amend, waive or supplement the Indenture for specified purposes, including,
among other things, curing ambiguities, defects or inconsistencies (provided
that any such action does not materially adversely affect the interest of the
holders of any series of Junior Subordinated Debentures or, in the case of
Corresponding Junior Subordinated Debentures, the holders of the Related
Preferred Securities so long as they remain outstanding) and qualifying, or
maintaining the qualification of, the Indenture under the Trust Indenture Act.
The Indenture contains provisions permitting the Corporation and the Debenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of each outstanding series of Junior Subordinated Debentures
affected, to modify the Indenture in a manner adversely affecting the rights of
the holders of such series of the Junior Subordinated Debentures in any material
respect; provided, that no such modification may, without the consent of the
holder of each outstanding Junior Subordinated Debenture so affected, (i) change
the Stated Maturity of any series of Junior Subordinated Debentures (except as
otherwise specified in the applicable Prospectus Supplement), or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon or (ii) reduce the percentage of principal amount of Junior
Subordinated Debentures of any series, the holders of which are required to
consent to any such modification of the Indenture, provided further that, in the
case of Corresponding Junior Subordinated Debentures, so long as any Related
Preferred Securities remain outstanding, (a) no such modification may be made
that adversely affects the holders of such Preferred Securities in any material
respect, and no termination of the Indenture may occur, and no waiver of any
event of default or compliance with any covenant under the Indenture may be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount of all outstanding Related Preferred Securities
affected unless and until the principal of the Corresponding Junior Subordinated
Debentures and all accrued and unpaid interest thereon have been paid in full
and certain other conditions have been satisfied, and (b) where a consent under
the Indenture would require the consent of each holder of Corresponding Junior
Subordinated Debentures, no such consent shall be given by the Property Trustee
without the prior consent of each holder of Related Preferred Securities.
In addition, the Corporation and the Debenture Trustee may execute, without
the consent of any holder of Junior Subordinated Debentures, any supplemental
Indenture for the purpose of creating any new series of Junior Subordinated
Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to a series of Junior Subordinated Debentures that has
occurred and is continuing constitutes a "Debenture Event of Default" with
respect to such series of Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on such series of Junior
Subordinated Debentures when due (subject to the deferral of any interest
payment in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on such series
of Junior Subordinated Debentures when due whether at maturity or upon
redemption; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Corporation from the Debenture Trustee
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or the holders of at least 25% in aggregate outstanding principal amount of
such affected series of outstanding Junior Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation.
The holders of a majority in aggregate outstanding principal amount of
Junior Subordinated Debentures of each series affected have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Debenture Trustee. Upon certain events of bankruptcy, insolvency or
reorganization of the Corporation constituting a Debenture Event of Default, the
principal amount of all outstanding Junior Subordinated Debentures (or such
portions of the principal amount as may be specified in the applicable
Prospectus Supplement) shall automatically become immediately due and payable.
The Debenture Trustee or the holders of not less than 25% in aggregate
outstanding principal amount of Junior Subordinated Debentures of each series
affected may declare the principal (or such portion of the principal amount as
may be specified in the applicable Prospectus Supplement) due and payable
immediately upon any other Debenture Event of Default, and, in the case of
Corresponding Junior Subordinated Debentures, should the Debenture Trustee or
such holders of such Corresponding Junior Subordinated Debentures fail to make
such declaration, the holders of at least 25% in aggregate Liquidation Amount of
the Related Preferred Securities shall have such right. The holders of a
majority in aggregate outstanding principal amount of Junior Subordinated
Debentures of each series affected may annul such declaration. In the case of
Corresponding Junior Subordinated Debentures, should the holders of such
Corresponding Junior Subordinated Debentures fail to annul such declaration and
waive such default, the holders of a majority in aggregate Liquidation Amount of
the Related Preferred Securities affected shall have such right.
The holders of a majority in aggregate outstanding principal amount of each
series of the Junior Subordinated Debentures affected thereby may, on behalf of
the holders of all the Junior Subordinated Debentures, waive any default, except
a default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Junior Subordinated Debenture. In the case of
Corresponding Junior Subordinated Debentures, should the holders of such
Corresponding Junior Subordinated Debentures fail to waive such default, the
holders of a majority in aggregate Liquidation Amount of the Related Preferred
Securities affected shall have such right. The Corporation is required to file
annually with the Debenture Trustee a certificate as to whether or not the
Corporation is in compliance with all the conditions and covenants applicable to
it under the Indenture.
In case a Debenture Event of Default shall occur and be continuing as to a
series of Corresponding Junior Subordinated Debentures, the Property Trustee
will have the right to declare the principal of and the interest on such
Corresponding Junior Subordinated Debentures, and any other amounts payable
under the Indenture, to be forthwith due and payable and to enforce its other
rights as a creditor with respect to such Corresponding Junior Subordinated
Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Debenture Event of Default with respect to a series of Corresponding
Junior Subordinated Debentures has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay interest or principal on
such Corresponding Junior Subordinated Debentures on the date such interest or
principal is due and payable, a holder of Preferred Securities may institute a
legal proceeding directly against the Corporation for enforcement of payment to
such holder of the principal of or interest on such Corresponding Junior
Subordinated Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Related Preferred Securities of such holder (a "Direct
Action"). The Corporation may not amend the Indenture to remove the foregoing
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right to bring a Direct Action without the prior written consent of the holders
of all of the Preferred Securities outstanding. If the right to bring a Direct
Action is removed, the applicable Issuer may become subject to the reporting
obligations under the Exchange Act. The Corporation shall have the right under
the Indenture to set-off any payment made to such holder of Preferred Securities
by the Corporation in connection with a Direct Action.
The holders of the Preferred Securities will not be able to exercise
directly any remedies other than those set forth in the preceding paragraph
available to the holders of the Junior Subordinated Debentures unless there
shall have been an event of default under the Trust Agreement. See "Description
of Preferred Securities -- Events of Default; Notice".
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Corporation shall not consolidate with or
merge into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Corporation or convey, transfer or lease its
properties and assets substantially as an entirety to the Corporation, unless
(i) in case the Corporation consolidates with or merges into another Person or
conveys or transfers its properties and assets substantially as an entirety to
any Person, the successor Person is organized under the laws of the United
States or any state or the District of Columbia, and such successor Person
expressly assumes the Corporation's obligations on the Junior Subordinated
Debentures issued under the Indenture; (ii) immediately after giving effect
thereto, no Debenture Event of Default, and no event which, after notice or
lapse of time or both, would become a Debenture Event of Default, shall have
occurred and be continuing; (iii) in the case of Corresponding Junior
Subordinated Debentures, such transaction is permitted under the related Trust
Agreement and Guarantee and does not give rise to any breach or violation of the
related Trust Agreement or Guarantee, and (iv) certain other conditions as
prescribed by the Indenture are met.
The general provisions of the Indenture do not afford holders of the Junior
Subordinated Debentures protection in the event of a highly leveraged or other
transaction involving the Corporation that may adversely affect holders of the
Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and payable
at their Stated Maturity within one year, and the Corporation deposits or causes
to be deposited with the Debenture Trustee funds, in trust, for the purpose and
in an amount in the currency or currencies in which the Junior Subordinated
Debentures are payable sufficient to pay and discharge the entire indebtedness
on the Junior Subordinated Debentures not previously delivered to the Debenture
Trustee for cancellation, for the principal (and premium, if any) and interest
to the date of the deposit or to the Stated Maturity, as the case may be, then
the Indenture will cease to be of further effect (except as to the Corporation's
obligations to pay all other sums due pursuant to the Indenture and to provide
the officers' certificates and opinions of counsel described therein), and the
Corporation will be deemed to have satisfied and discharged the Indenture.
CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable Prospectus Supplement, the
Junior Subordinated Debentures of any series may be convertible or exchangeable
into Junior Subordinated Debentures of another series or into Preferred
Securities of another series. The specific terms on which Junior Subordinated
Debentures of any series may be so converted or exchanged will be set forth in
the applicable Prospectus Supplement. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the holder, or at the
option of the Corporation, in which case the
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number of shares of Preferred Securities or other securities to be received by
the holders of Junior Subordinated Debentures would be calculated as of a time
and in the manner stated in the applicable Prospectus Supplement.
SUBORDINATION
The Junior Subordinated Debentures shall be subordinate and junior in right
of payment, to the extent set forth in the Indenture, to all Senior Indebtedness
(as defined below) of the Corporation. In the event that the Corporation shall
default in the payment of any principal, premium, if any, or interest, if any,
on any Senior Indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, unless and until such default shall have been cured or waived
or shall have ceased to exist or all Senior Indebtedness shall have been paid,
no direct or indirect payment (in cash, property, securities, by set-off or
otherwise) shall be made or agreed to be made for principal, premium, if any, or
interest, if any, on the Junior Subordinated Debentures, or in respect of any
redemption, repayment, retirement, purchase or other acquisition of any of the
Junior Subordinated Debentures.
As used herein, "Senior Debt" means any obligation of the Corporation to
its creditors, whether now outstanding or subsequently incurred, other than any
obligation as to which, in the instrument creating or evidencing the obligation
or pursuant to which the obligation is outstanding, it is provided that such
obligation is not Senior Debt. As used herein, "Senior Subordinated Debt" means
any obligation of the Corporation to its creditors, whether now outstanding or
subsequently incurred, where the instrument creating or evidencing the
obligation or pursuant to which the obligation is outstanding, provides that it
is subordinate and junior in right of payment to Senior Debt. Senior
Subordinated Debt includes the Corporation's outstanding subordinated debt
securities and any subordinated debt securities issued in the future with
substantially similar subordination terms and does not include the Junior
Subordinated Debentures. Senior Debt does not include Senior Subordinated Debt
or the Junior Subordinated Debentures.
As used herein, "Senior Indebtedness" shall include (i) Senior Debt (but
excluding trade accounts payable and accrued liabilities arising in the ordinary
course of business) and (ii) the Allocable Amounts (as defined below) of Senior
Subordinated Debt. As of September 30, 1996, the Corporation had approximately
$160 million of Senior Indebtedness outstanding.
As used herein, "Allocable Amounts," when used with respect to any Senior
Subordinated Debt, means the amount necessary to pay all principal of (and
premium, if any) and interest, if any, on such Senior Subordinated Debt in full
less, if applicable, any portion of such amounts which would have been paid to,
and retained by, the holders of such Senior Subordinated Debt (whether as a
result of the receipt of payments by the holders of such Senior Subordinated
Debt from the Corporation or any other obligor thereon or from any holders of,
or trustee in respect of, other indebtedness that is subordinate and junior in
right of payment to such Senior Subordinated Debt pursuant to any provision of
such indebtedness for the payment over of amounts received on account of such
indebtedness to the holders of such Senior Subordinated Debt) but for the fact
that such Senior Subordinated Debt is subordinate or junior in right of payment
to trade accounts payable or accrued liabilities arising in the ordinary course
of business.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv) any
other marshalling of the assets of the Corporation, all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made on account of the
principal of or premium, if any, or interest, if any, on the Junior Subordinated
Debentures. In such event, any
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payment or distribution on account of the principal of or premium, if any, or
interest, if any, on the Junior Subordinated Debentures, whether in cash,
securities or other property (other than securities of the Corporation or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Junior Subordinated Debentures, to
the payment of all Senior Indebtedness at the time outstanding, and to any
securities issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for the subordination provisions) be
payable or deliverable in respect of the Junior Subordinated Debentures shall be
paid or delivered directly to the holders of Senior Indebtedness in accordance
with the priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the commencement of
any such proceedings) shall have been paid in full.
In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the holders of Junior Subordinated
Debentures, together with the holders of any obligations of the Corporation
ranking on a parity with the Junior Subordinated Debentures, shall be entitled
to be paid from the remaining assets of the Corporation the amounts at the time
due and owing on account of unpaid principal of and premium, if any, and
interest, if any, on the Junior Subordinated Debentures and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or obligations of
the Corporation ranking junior to the Junior Subordinated Debentures and such
other obligations. If any payment or distribution on account of the principal of
or interest on the Junior Subordinated Debentures of any character or any
security, whether in cash, securities or other property (other than securities
of the Corporation or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in the subordination provisions with respect to the Junior
Subordinated Debentures, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment) shall be received by any holder of any Junior
Subordinated Debentures in contravention of any of the terms hereof and before
all the Senior Indebtedness shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full. By reason of such subordination, in the event of the
insolvency of the Corporation, holders of Senior Indebtedness may receive more,
ratably, and holders of the Junior Subordinated Debentures having a claim
pursuant to such securities may receive less, ratably, than the other creditors
of the Corporation. Such subordination will not prevent the occurrence of any
Debenture Event of Default in respect of the Junior Subordinated Debentures.
The Indenture provides that the foregoing subordination provisions, insofar
as they relate to any particular issue of Junior Subordinated Debentures, may be
changed prior to such issuance. Any such change would be described in the
applicable Prospectus Supplement.
The Indenture places no limitation on the amount of additional Senior
Indebtedness that may be incurred by the Corporation. The Corporation expects
from time to time to incur additional indebtedness constituting Senior
Indebtedness.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by
and construed in accordance with the laws of the State of New York.
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INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Debenture Trustee is under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of any holder of Junior Subordinated Debentures, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The Debenture Trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures may be issued in one or
more series of Junior Subordinated Debentures under the Indenture with terms
corresponding to the terms of a series of Related Preferred Securities. In that
event, concurrently with the issuance of each Issuer's Preferred Securities,
such Issuer will invest the proceeds thereof and the consideration paid by the
Corporation for the Common Securities of such Issuer in such series of
Corresponding Junior Subordinated Debentures issued by the Corporation to such
Issuer. Each series of Corresponding Junior Subordinated Debentures will be in
the principal amount equal to the aggregate stated Liquidation Amount of the
Related Preferred Securities and the Common Securities of such Issuer and will
rank pari passu with all other series of Junior Subordinated Debentures. Holders
of the Related Preferred Securities for a series of Corresponding Junior
Subordinated Debentures will have the rights, in connection with modifications
to the Indenture or upon occurrence of Debenture Events of Default, as described
under "-- Modification of Indenture" and " -- Debenture Events of Default,"
unless provided otherwise in the Prospectus Supplement for such Related
Preferred Securities.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Tax Event or Capital Treatment Event in respect of an Issuer shall occur and be
continuing, the Corporation may, at its option, redeem the Corresponding Junior
Subordinated Debentures at any time within 90 days of the occurrence of such Tax
Event or Capital Treatment Event, in whole but not in part, subject to the
provisions of the Indenture and whether or not such Corresponding Junior
Subordinated Debentures are then otherwise redeemable at the option of the
Corporation. The redemption price for any Corresponding Junior Subordinated
Debentures shall be equal to 100% of the principal amount of such Corresponding
Junior Subordinated Debentures then outstanding plus accrued and unpaid interest
to the date fixed for redemption. The Corporation has committed to the Reserve
Bank that it will not cause any such redemption without having received the
prior approval of the Federal Reserve to do so, if then required under
applicable Federal Reserve capital guidelines or policies. For so long as the
applicable Issuer is the holder of all the outstanding Corresponding Junior
Subordinated Debentures of such series, the proceeds of any such redemption will
be used by the Issuer to redeem the corresponding Trust Securities in accordance
with their terms. The Corporation may not redeem a series of Corresponding
Junior Subordinated Debentures in part unless all accrued and unpaid interest
has been paid in full on all outstanding Corresponding Junior Subordinated
Debentures of such series for all interest periods terminating on or prior to
the Redemption Date.
The Corporation will covenant in the Indenture, as to each series of
Corresponding Junior Subordinated Debentures, that if and so long as (i) the
Issuer of the related series of Trust Securities is the holder of all such
Corresponding Junior Subordinated Debentures, (ii) a Tax Event in respect of
such Issuer has occurred and is continuing and (iii) the Corporation has
elected, and has not revoked such election, to pay Additional Sums (as defined
under "Description of Preferred Securities -- Redemption or Exchange") in
respect of such Trust Securities, the Corporation will pay to such Issuer such
Additional Sums. The Corporation will also covenant, as to each series of
Corresponding Junior Subordinated Debentures, (i) to maintain directly or
indirectly 100% owner-
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ship of the Common Securities of the Issuer to which such Corresponding Junior
Subordinated Debentures have been issued, provided that certain successors which
are permitted pursuant to the Indenture may succeed to the Corporation's
ownership of the Common Securities, (ii) not to voluntarily terminate, wind up
or liquidate any Issuer, except (a) in connection with a distribution of
Corresponding Junior Subordinated Debentures to the holders of the Preferred
Securities in exchange therefor upon liquidation of such Issuer, or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement, in either such case, if so specified in the
applicable Prospectus Supplement upon prior approval of the Federal Reserve if
then so required under applicable capital guidelines or policies, and (iii) to
use its reasonable efforts, consistent with the terms and provisions of the
related Trust Agreement, to cause such Issuer to be classified as a grantor
trust and not as an association taxable as a corporation for United States
federal income tax purposes.
DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer, the Issuer
Trustees on behalf of such Issuer will issue the Preferred Securities and the
Common Securities. The Preferred Securities of a particular issue will represent
beneficial ownership interests in the Issuer and the holders thereof will be
entitled to a preference in certain circumstances with respect to Distributions
and amounts payable on redemption or liquidation over the Common Securities of
such Issuer, as well as other benefits as described in the corresponding Trust
Agreement. This summary of certain provisions of the Preferred Securities and
each Trust Agreement, which summarizes material terms thereof, does not purport
to be complete and is subject to, and is qualified in its entirety by reference
to, all the provisions of each Trust Agreement, including the definitions
therein of certain terms, and the Trust Indenture Act, to each of which
reference is hereby made. Wherever particular defined terms of a Trust Agreement
(as amended or supplemented from time to time) are referred to herein or in a
Prospectus Supplement, such defined terms are incorporated herein or therein by
reference. The form of the Trust Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Each of the
Issuers is a legally separate entity and the assets of one are not available to
satisfy the obligations of any of the others.
GENERAL
The Preferred Securities of an Issuer will rank pari passu, and payments
will be made thereon pro rata, with the Common Securities of that Issuer except
as described under "-- Subordination of Common Securities". Legal title to the
Corresponding Junior Subordinated Debentures will be held by the Property
Trustee in trust for the benefit of the holders of the related Preferred
Securities and Common Securities. Each Guarantee Agreement executed by the
Corporation for the benefit of the holders of an Issuer's Trust Securities (the
"Guarantee") will be a guarantee on a subordinated basis with respect to the
related Trust Securities but will not guarantee payment of Distributions or
amounts payable on redemption or liquidation of such Trust Securities when the
related Issuer does not have funds on hand available to make such payments. See
"Description of Guarantees".
DISTRIBUTIONS
Distributions on the Preferred Securities will be cumulative, will
accumulate from the date of original issuance and will be payable on such dates
as specified in the applicable Prospectus Supplement. In the event that any date
on which Distributions are payable on the Preferred Securities is not a Business
Day (as defined below), payment of the Distribution payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect to any such delay) except that, if such Business Day
is in the next succeeding calendar year, payment of such Distribution shall be
made on the immediately preceding Business Day, in either case with the same
force and effect as if made on such date (each date on which Distributions are
payable in accordance with the foregoing, a "Distribution Date"). A
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"Business Day" shall mean any day other than a Saturday or a Sunday, or a day on
which banking institutions in The City of New York are authorized or required by
law or executive order to remain closed or a day on which the corporate trust
office of the Property Trustee or the Debenture Trustee is closed for business.
Each Issuer's Preferred Securities represent beneficial ownership interests
in the applicable Issuer, and the Distributions on each Preferred Security will
be payable at a rate specified in the applicable Prospectus Supplement for such
Preferred Securities. The amount of Distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months unless otherwise
specified in the applicable Prospectus Supplement. Distributions to which
holders of Preferred Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the applicable
Prospectus Supplement. The term "Distributions" as used herein includes any such
additional Distributions unless otherwise stated.
If provided in the applicable Prospectus Supplement, the Corporation has
the right under the Indenture, pursuant to which it will issue the Corresponding
Junior Subordinated Debentures, to defer the payment of interest at any time or
from time to time on any series of the Corresponding Junior Subordinated
Debentures for up to such number of consecutive interest payment periods which
will be specified in such Prospectus Supplement relating to such series (each,
an "Extension Period"), provided that no Extension Period may extend beyond the
Stated Maturity of the Corresponding Junior Subordinated Debentures. As a
consequence of any such deferral, Distributions on the Related Preferred
Securities would be deferred (but would continue to accumulate additional
Distributions thereon at the rate per annum set forth in the Prospectus
Supplement for such Preferred Securities) by the Issuer of such Preferred
Securities during any such Extension Period. During such Extension Period, the
Corporation may not, and may not permit any subsidiary of the Corporation to,
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Corporation's
capital stock, (ii) make any payment of principal, interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Corporation that
rank pari passu with or junior in interest to the Corresponding Junior
Subordinated Debentures or (iii) make any guarantee payments with respect to any
guarantee by the Corporation of debt securities of any subsidiary of the
Corporation if such guarantee ranks pari passu with or junior in interest to the
Corresponding Junior Subordinated Debentures (other than (a) dividends or
distributions in capital stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
the redemption or repurchase of any such rights pursuant thereto, (c) payments
under the Guarantee with respect to such Preferred Securities and (d) purchases
of common stock related to the issuance of common stock or rights or options
under any of the Corporation's benefit plans for its directors, officers,
employees or other persons within the definition of "employee" for purposes of a
registration of shares for an employee benefit plan of the Corporation, related
to the issuance of common stock or rights under a dividend reinvestment and
stock purchase plan, or related to the issuance of common stock (or securities
convertible into or exchangeable for common stock) as consideration in an
acquisition transaction).
The revenue of each Issuer available for distribution to holders of its
Preferred Securities will be limited to payments under the Corresponding Junior
Subordinated Debentures in which the Issuer will invest the proceeds from the
issuance and sale of its Trust Securities. See "Description of Junior
Subordinated Debentures -- Corresponding Junior Subordinated Debentures". If the
Corporation does not make interest payments on such Corresponding Junior
Subordinated Debentures, the Property Trustee will not have funds available to
pay Distributions on the Related Preferred Securities. The payment of
Distributions (if and to the extent the Issuer has funds legally available for
the payment of such Distributions and cash sufficient to make such payments) is
guaranteed by the Corporation on the basis set forth herein under "Description
of Guarantees".
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of such Issuer on the relevant record
dates, which, as long as the Preferred Securities remain in book-entry form,
will be one Business Day prior to the relevant Distribution
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Date. Subject to any applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as described under
"Book-Entry Issuance". In the event any Preferred Securities are not in
book-entry form, the relevant record date for such Preferred Securities shall be
15 days prior to the relevant Distribution Date, as specified in the applicable
Prospectus Supplement.
REDEMPTION OR EXCHANGE
Mandatory Redemption. Upon the repayment or redemption, in whole or in
part, of any Corresponding Junior Subordinated Debentures, whether at maturity
or upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee to redeem a
Like Amount (as defined below) of the Trust Securities, upon not less than 30
nor more than 60 days notice, at a redemption price (the "Redemption Price")
equal to the aggregate Liquidation Amount of such Trust Securities plus
accumulated but unpaid Distributions thereon to the date of redemption (the
"Redemption Date") and the related amount of the premium, if any, paid by the
Corporation upon the concurrent redemption of such Corresponding Junior
Subordinated Debentures. See "Description of Junior Subordinated
Debentures -- Redemption". If less than all of any series of Corresponding
Junior Subordinated Debentures are to be repaid or redeemed on a Redemption
Date, then the proceeds from such repayment or redemption shall be allocated to
the redemption pro rata of the related Preferred Securities and the Common
Securities. The amount of premium, if any, paid by the Corporation upon the
redemption of all or any part of any series of any Corresponding Junior
Subordinated Debentures to be repaid or redeemed on a Redemption Date shall be
allocated to the redemption pro rata of the related Preferred Securities and the
Common Securities.
The Corporation will have the right to redeem any series of Corresponding
Junior Subordinated Debentures (i) on or after such date as may be specified in
the applicable Prospectus Supplement, in whole at any time or in part from time
to time, or (ii) at any time, in whole (but not in part), upon the occurrence of
a Tax Event or Capital Treatment Event. The Corporation has committed to the
Reserve Bank that it will not cause any such redemption without having received
the prior approval of the Federal Reserve to do so, if then required under
applicable Federal Reserve capital guidelines or policies.
Distribution of Corresponding Junior Subordinated Debentures. The
Corporation has the right at any time to liquidate the related Issuer and, after
satisfaction of the liabilities of creditors of such Issuer as provided by
applicable law, cause such Corresponding Junior Subordinated Debentures in
respect of the Preferred Securities and Common Securities issued by such Issuer
to be distributed to the holders of such Preferred Securities and Common
Securities in exchange therefor upon liquidation of the Issuer. The Corporation
has committed to the Reserve Bank that it will not exercise its right to
liquidate an Issuer without having received the prior approval of the Federal
Reserve to do so, if then required under applicable Federal Reserve capital
guidelines or policies.
Tax Event or Capital Treatment Event Redemption. If a Tax Event or Capital
Treatment Event in respect of Junior Subordinated Debentures corresponding to a
series of Preferred Securities and Common Securities shall occur and be
continuing, the Corporation has the right to redeem the Corresponding Junior
Subordinated Debentures in whole (but not in part) and thereby cause a mandatory
redemption of such Preferred Securities and Common Securities in whole (but not
in part) at the Redemption Price within 90 days following the occurrence of such
Tax Event or Capital Treatment Event. In the event a Tax Event or Capital
Treatment Event in respect of Junior Subordinated Debentures corresponding to a
series of Preferred Securities and Common Securities has occurred and is
continuing and the Corporation does not elect to redeem the Corresponding Junior
Subordinated Debentures and thereby cause a mandatory redemption of such
Preferred Securities and Common Securities or to liquidate the related Issuer
and cause the Corresponding Junior Subordinated Debentures to be distributed to
holders of such Preferred Securities and Common Securities in exchange therefor
upon liquidation of the Issuer as described above, such
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Preferred Securities will remain outstanding and Additional Sums (as defined
below) may be payable on the Corresponding Junior Subordinated Debentures.
Possible Tax Law Changes. On March 19, 1996, the Revenue Reconciliation
Bill of 1996 (the "Bill"), the revenue portion of President Clinton's budget
proposal, was released. The Bill would, among other things, generally deny
interest deductions for interest on an instrument issued by a corporation that
has a maximum weighted average maturity of more than 20 years and that is not
shown as indebtedness on the separate balance sheet of the issuer or, where the
instrument is issued to a related party (other than a corporation), where the
holder or some other related party issues a related instrument that is not shown
as indebtedness on the issuer's consolidated balance sheet. The above-described
provision of the Bill was proposed to be effective generally for instruments
issued on or after December 7, 1995. If this provision were to apply to the
Junior Subordinated Debentures, the Corporation would not be able to deduct
interest on the Junior Subordinated Debentures. However, on March 29, 1996, the
Chairmen of the Senate Finance and House Ways and Means Committees issued a
joint statement (the "Joint Statement") to the effect that it was their
intention that the effective date of the President's legislative proposals, if
adopted, would be no earlier than the date of appropriate Congressional action.
If the principles contained in the Joint Statement were followed and the Bill
was enacted, such legislation would not apply to the Junior Subordinated
Debentures. Although the 104th Congress adjourned without enacting the Bill,
there can be no assurance that future legislative proposals or final legislation
will not adversely affect the ability of the Corporation to deduct interest on
the Junior Subordinated Debentures or otherwise affect the tax treatment of the
transaction described herein. Moreover, such a change could give rise to a Tax
Event, which may permit the Corporation to cause a redemption of the Related
Preferred Securities. The Corporation has committed to the Reserve Bank that it
will not cause any such redemption without having received the prior approval of
the Federal Reserve to do so, if then required under applicable Federal Reserve
capital guidelines or policies.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by an Issuer on the
outstanding Preferred Securities and Common Securities of the Issuer shall not
be reduced as a result of any additional taxes, duties and other governmental
charges to which such Issuer has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to that portion of the principal amount of Corresponding
Junior Subordinated Debentures to be contemporaneously redeemed in accordance
with the Indenture, allocated to the Common Securities and to the Preferred
Securities pro rata based upon the relative Liquidation Amounts of such classes
and the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (ii) with respect to a distribution of Corresponding Junior
Subordinated Debentures to holders of any series of Trust Securities in exchange
therefor in connection with a dissolution or liquidation of the related Issuer,
Corresponding Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the holder to whom such
Corresponding Junior Subordinated Debentures would be distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
After the liquidation date fixed for any distribution of Corresponding
Junior Subordinated Debentures for any series of Preferred Securities (i) such
series of Preferred Securities will no longer be deemed to be outstanding, (ii)
the depository or its nominee, as the record holder of such series of Preferred
Securities, will receive a registered global certificate or certificates
representing the Corresponding Junior Subordinated Debentures to be delivered
upon such distribution and (iii) any certificates representing such series of
Preferred Securities not held by DTC or its nominee will be deemed to represent
the Corresponding Junior Subordinated Debentures having a principal amount equal
to the stated Liquidation Amount of such series of Preferred Securities, and
bearing accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such
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series of Preferred Securities until such certificates are presented to the
Administrative Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Corresponding Junior Subordinated Debentures that may be
distributed in exchange for Preferred Securities if a dissolution and
liquidation of an Issuer were to occur. Accordingly, the Preferred Securities
that an investor may purchase, or the Corresponding Junior Subordinated
Debentures that the investor may receive on dissolution and liquidation of an
Issuer, may trade at a discount to the price that the investor paid to purchase
the Preferred Securities offered hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Corresponding Junior Subordinated Debentures. Redemptions of
the Preferred Securities shall be made and the Redemption Price shall be payable
on each Redemption Date only to the extent that the related Issuer has funds on
hand available for the payment of such Redemption Price. See also
"-- Subordination of Common Securities".
If an Issuer gives a notice of redemption in respect of its Preferred
Securities, which are in book-entry form then, by 12:00 noon, New York City
time, on the Redemption Date, to the extent funds are available, the Property
Trustee will deposit irrevocably with DTC funds sufficient to pay the applicable
Redemption Price and will give DTC irrevocable instructions and authority to pay
the Redemption Price to the holders of such Preferred Securities. See
"Book-Entry Issuance". If such Preferred Securities are no longer in book-entry
form, the Property Trustee, to the extent funds are available, will irrevocably
deposit with the paying agent for such Preferred Securities funds sufficient to
pay the applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the holders thereof
upon surrender of their certificates evidencing such Preferred Securities.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Preferred Securities called for redemption shall be
payable to the holders of such Preferred Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then upon the date of such deposit, all
rights of the holders of such Preferred Securities so called for redemption will
cease, except the right of the holders of such Preferred Securities to receive
the Redemption Price, but without interest on such Redemption Price, and such
Preferred Securities will cease to be outstanding. In the event that any date
fixed for redemption of Preferred Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day. In the event that payment of the Redemption Price in respect of Preferred
Securities called for redemption is improperly withheld or refused and not paid
either by the Issuer or by the Corporation pursuant to the Guarantee as
described under "Description of Guarantees," Distributions on such Preferred
Securities will continue to accrue at the then applicable rate, from the
Redemption Date originally established by the Issuer for such Preferred
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
Subject to applicable law (including, without limitation, United States
federal securities law), the Corporation or its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Corresponding Junior Subordinated Debentures to holders of
Preferred Securities shall be made to the applicable recordholders thereof as
they appear on the register for such Preferred Securities on the relevant record
date, which shall be one Business Day prior to the relevant Redemption Date or
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liquidation date, as applicable; provided, however, that in the event that any
Preferred Securities are not in book-entry form, the relevant record date for
such Preferred Securities shall be 15 days prior to the Redemption Date or
liquidation date, as applicable, or as otherwise specified in the applicable
Prospectus Supplement.
If less than all of the Preferred Securities and Common Securities issued
by an Issuer are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Preferred Securities and Common Securities to be
redeemed shall be allocated pro rata to the Preferred Securities and the Common
Securities based upon the relative Liquidation Amounts of such classes. The
particular Preferred Securities to be redeemed shall be selected on a pro rata
basis not more than 60 days prior to the Redemption Date by the Property Trustee
from the outstanding Preferred Securities not previously called for redemption,
by such method as the Property Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the trust registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of each Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate, in
the case of any Preferred Securities redeemed or to be redeemed only in part, to
the portion of the aggregate Liquidation Amount of Preferred Securities which
has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Issuer's
Preferred Securities and Common Securities, as applicable, shall be made pro
rata based on the Liquidation Amount of such Preferred Securities and Common
Securities; provided, however, that if on any Distribution Date or Redemption
Date a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Issuer's
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all of
the Issuer's outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all of the Issuer's
outstanding Preferred Securities then called for redemption, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or
Redemption Price of, the Issuer's Preferred Securities then due and payable.
In the case of any event of default under the applicable Trust Agreement
resulting from a Debenture Event of Default, the Corporation as holder of such
Issuer's Common Securities will be deemed to have waived any right to act with
respect to any such event of default under the applicable Trust Agreement until
the effect of all such events of default with respect to such Preferred
Securities have been cured, waived or otherwise eliminated. Until all events of
default under the applicable Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the holders of such Preferred Securities
and not on behalf of the Corporation as holder of the Issuer's Common
Securities, and only the holders of such Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
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LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each Trust Agreement, each Issuer shall automatically terminate
upon expiration of its term and shall terminate on the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Holder of the
Common Securities; (ii) the distribution of a Like Amount of the Corresponding
Junior Subordinated Debentures to the holders of its Trust Securities, if the
Corporation, as Depositor, has given written direction to the Property Trustee
to terminate such Issuer (subject to the Corporation having received prior
approval of the Federal Reserve if so required under applicable capital
guidelines or policies); (iii) redemption of all of the Issuer's Preferred
Securities as described under " -- Redemption or Exchange -- Mandatory
Redemption"; and (iv) the entry of an order for the dissolution of the Issuer by
a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv)
above, the Issuer shall be liquidated by the Issuer Trustees as expeditiously as
the Issuer Trustees determine to be possible by distributing, after satisfaction
of liabilities to creditors of such Issuer as provided by applicable law, to the
holders of such Trust Securities in exchange therefor a Like Amount of the
Corresponding Junior Subordinated Debentures, unless such distribution is
determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of the Issuer available
for distribution to holders, after satisfaction of liabilities to creditors of
such Issuer as provided by applicable law, an amount equal to, in the case of
holders of Preferred Securities, the aggregate of the Liquidation Amount plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because such Issuer has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by such Issuer on its Preferred Securities shall be paid on a pro rata
basis. The holder(s) of such Issuer's Common Securities will be entitled to
receive distributions upon any such liquidation pro rata with the holders of its
Preferred Securities, except that if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under
each Trust Agreement with respect to the Preferred Securities issued thereunder
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the Indenture
(see "Description of Junior Subordinated Debentures -- Debenture Events of
Default"); or
(ii) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in such Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 90 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Trustees by the holders of at least 25% in aggregate Liquidation
Amount of the outstanding Preferred Securities of the applicable Issuer, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" under such
Trust Agreement; or
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(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Corporation to
appoint a successor Property Trustee within 90 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of such Issuer's Preferred
Securities, the Administrative Trustees and the Corporation, as Depositor,
unless such Event of Default shall have been cured or waived. The Corporation,
as Depositor, and the Administrative Trustees are required to file annually with
the Property Trustee a certificate as to whether or not they are in compliance
with all the conditions and covenants applicable to them under each Trust
Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities as
described above. See "Subordination of Common Securities" and "-- Liquidation
Distribution Upon Termination". The existence of an Event of Default does not
entitle the holders of Preferred Securities to accelerate the maturity thereof.
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by the holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed at such time by the
holders of a majority in Liquidation Amount of the outstanding Preferred
Securities. In no event will the holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Corporation as the holder of the
Common Securities. No resignation or removal of an Issuer Trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at any
time or from time to time, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Corporation, as the holder of the
Common Securities, and the Administrative Trustees shall have power to appoint
one or more persons either to act as a co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. In case a Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee under each Trust Agreement,
provided such Person shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUERS
An Issuer may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described below. An Issuer may, at the request of the Corporation, with the
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consent of the Administrative Trustees and without the consent of the holders of
the Preferred Securities, merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, a trust organized as such under the laws of any
State; provided, that (i) such successor entity either (a) expressly assumes all
of the obligations of such Issuer with respect to the Preferred Securities or
(b) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
Securities in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Corporation expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Corresponding Junior Subordinated
Debentures, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, if any, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities to be
downgraded by any nationally recognized statistical rating organization which
gives ratings on the Preferred Securities, (v) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose identical to that of the Issuer, (vii) prior
to such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Corporation has received an opinion from independent counsel to
the Issuer experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer nor such
successor entity will be required to register as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
(viii) the Corporation or any permitted successor or assignee owns all of the
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, an Issuer shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Issuer or the successor entity to be taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees -- Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the Corporation,
the Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent with
any other provision, or to make any other provisions with respect to matters or
questions arising under such Trust Agreement, which shall not be inconsistent
with the other provisions of such Trust Agreement, or (ii) to modify, eliminate
or add to any provisions of such Trust Agreement to such extent as shall be
necessary to ensure that the Issuer will not be taxable as a corporation and
will be classified as a grantor trust for United States federal income tax
purposes at all times that any Trust Securities are outstanding or to ensure
that the Issuer will not be required to register as an "investment company"
under the Investment Company Act; provided,
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however, that in the case of either clause (i) or clause (ii), such action shall
not adversely affect in any material respect the interests of any holder of
Preferred Securities, and any amendments of such Trust Agreement shall become
effective when notice thereof is given to the holders of Trust Securities. Each
Trust Agreement may be amended by the Issuer Trustees and the Corporation with
(i) the consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Trust Securities, and (ii) receipt by
the Issuer Trustees of an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Issuer Trustees in accordance with
such amendment will not affect the Issuer's status as a grantor trust for United
States federal income tax purposes, or the Issuer's exemption from status as an
"investment company" under the Investment Company Act or cause the Issuer to be
taxable as a corporation for United States federal income tax purposes, provided
that without the consent of each holder of Trust Securities, such Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
So long as any Corresponding Junior Subordinated Debentures are held by the
Property Trustee, the Issuer Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Property Trustee with
respect to such Corresponding Junior Subordinated Debentures, (ii) waive any
past default that is waivable under the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or such Corresponding Junior
Subordinated Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Preferred Securities; provided, however,
that where a consent under the Indenture would require the consent of each
holder of Corresponding Junior Subordinated Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior consent of each
holder of the corresponding Preferred Securities. The Issuer Trustees shall not
revoke any action previously authorized or approved by a vote of the holders of
the Preferred Securities except by subsequent vote of the holders of the
Preferred Securities. The Property Trustee shall notify each holder of Preferred
Securities of any notice of default with respect to the Corresponding Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of the
holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Issuer Trustees shall obtain an opinion of counsel experienced in
such matters to the effect that such action would not cause the Issuer to be
classified as other than a grantor trust or to be taxable as a corporation for
United States federal income tax purposes.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or pursuant
to written consent. The Property Trustee will cause a notice of any meeting at
which holders of Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be given
to each holder of record of Preferred Securities in the manner set forth in each
Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for an Issuer to redeem and cancel its Preferred Securities in accordance with
the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Corporation, the Issuer Trustees or any
affiliate of the Corporation or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
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GLOBAL PREFERRED SECURITIES
The Preferred Securities of a series may be issued in whole or in part in
the form of one or more Global Preferred Securities that will be deposited with,
or on behalf of, the Depositary identified in the Prospectus Supplement relating
to such series. Unless otherwise indicated in the applicable Prospectus
Supplement for such series, the Depositary will be DTC. Global Preferred
Securities may be issued only in fully registered form and in either temporary
or permanent form. Unless and until it is exchanged in whole or in part for the
individual Preferred Securities represented thereby, a Global Preferred Security
may not be transferred except as a whole by the Depositary for such Global
Preferred Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any nominee to a successor Depositary or any nominee of such
successor.
The specific terms of the depositary arrangement with respect to a series
of Preferred Securities will be described in the Prospectus Supplement relating
to such series. The Corporation anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Preferred Security, and the deposit of such
Global Preferred Security with or on behalf of the Depositary, the Depositary
for such Global Preferred Security or its nominee will credit, on its book-entry
registration and transfer system, the respective aggregate Liquidation Amounts
of the individual Preferred Securities represented by such Global Preferred
Securities to the accounts of Participants. Such accounts shall be designated by
the dealers, underwriters or agents with respect to such Preferred Securities or
by the Corporation if such Preferred Securities are offered and sold directly by
the Corporation. Ownership of beneficial interests in a Global Preferred
Security will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in such Global Preferred
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the applicable Depositary or its nominee
(with respect to interests of Participants) and the records of Participants
(with respect to interests of persons who hold through Participants). The laws
of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Preferred
Security.
So long as the Depositary for a Global Preferred Security, or its nominee,
is the registered owner of such Global Preferred Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Preferred Securities represented by such Global Preferred Security for all
purposes under the Indenture governing such Preferred Securities. Except as
provided below, owners of beneficial interests in a Global Preferred Security
will not be entitled to have any of the individual Preferred Securities of the
series represented by such Global Preferred Security registered in their names,
will not receive or be entitled to receive physical delivery of any such
Preferred Securities of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest on individual
Preferred Securities represented by a Global Preferred Security registered in
the name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Preferred
Security representing such Preferred Securities. None of the Corporation, the
Property Trustee, any Paying Agent, or the Securities Registrar for such
Preferred Securities will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of the Global Preferred Security representing such Preferred
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Corporation expects that the Depositary for a series of Preferred
Securities or its nominee, upon receipt of any payment of Liquidation Amount,
Redemption Price, premium or Distributions in respect of a permanent Global
Preferred Security representing any of such Preferred Securities,
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immediately will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the aggregate
Liquidation Amount of such Global Preferred Security for such Preferred
Securities as shown on the records of such Depositary or its nominee. The
Corporation also expects that payments by Participants to owners of beneficial
interests in such Global Preferred Security held through such Participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name." Such payments will be the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depositary for a series of Preferred Securities is at any time unwilling, unable
or ineligible to continue as depositary and a successor depositary is not
appointed by the Issuer within 90 days, the Issuer will issue individual
Preferred Securities of such series in exchange for the Global Preferred
Security representing such series of Preferred Securities. In addition, the
Issuer may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Preferred Securities,
determine not to have any Preferred Securities of such series represented by one
or more Global Preferred Securities and, in such event, will issue individual
Preferred Securities of such series in exchange for the Global Preferred
Security or Securities representing such series of Preferred Securities.
Further, if the Issuer so specifies with respect to the Preferred Securities of
a series, an owner of a beneficial interest in a Global Preferred Security
representing Preferred Securities of such series may, on terms acceptable to the
Issuer, the Property Trustee and the Depositary for such Global Preferred
Security, receive individual Preferred Securities of such series in exchange for
such beneficial interests, subject to any limitations described in the
Prospectus Supplement relating to such Preferred Securities. In any such
instance, an owner of a beneficial interest in a Global Preferred Security will
be entitled to physical delivery of individual Preferred Securities of the
series represented by such Global Preferred Security equal in principal amount
to such beneficial interest and to have such Preferred Securities registered in
its name. Individual Preferred Securities of such series so issued will be
issued in denominations, unless otherwise specified by the Issuer, of $25 and
integral multiples thereof.
TRUST EXPENSES
Pursuant to each Trust Agreement, the Holder of the Common Securities will
be liable to the Issuer for all the debts, expenses and obligations of such
Issuer (other than obligations of the Issuer to pay to the holders of any
Preferred Securities or other similar interests in the Issuer the amounts due
such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be) to the extent not satisfied out of the
Issuer's assets.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to the
Depositary, which shall credit the relevant accounts at the Depositary on the
applicable Distribution Dates or, if any Issuer's Preferred Securities are not
held by the Depositary, such payments shall be made by wire transfer, direct
deposit or check mailed to the address of the holder entitled thereto as such
address shall appear on the Register. Unless otherwise specified in the
applicable Prospectus Supplement, the paying agent (the "Paying Agent") shall
initially be the Property Trustee and any co-paying agent chosen by the Property
Trustee and acceptable to the Administrative Trustees and the Corporation. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Property Trustee and the Corporation. In the event that the
Property Trustee shall no longer be the Paying Agent, the Administrative
Trustees shall appoint a successor (which shall be a bank or trust company
acceptable to the Administrative Trustees and the Corporation) to act as Paying
Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Preferred
Securities.
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Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of each Issuer, but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The Issuers will not be required to register or cause to be registered
the transfer of their Preferred Securities after such Preferred Securities have
been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of
an Event of Default, will perform only such duties as are specifically set forth
in each Trust Agreement and in the Trust Indenture Act and, after such Event of
Default, must exercise the same degree of care and skill as a prudent person
would exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the applicable Trust Agreement at the request of any
holder of Preferred Securities unless it is offered reasonable indemnity against
the costs, expenses and liabilities that might be incurred thereby. If no Event
of Default has occurred and is continuing and the Property Trustee is required
to decide between alternative causes of action, construe ambiguous provisions in
the applicable Trust Agreement or is unsure of the application of any provision
of the applicable Trust Agreement, and the matter is not one on which holders of
Preferred Securities are entitled under such Trust Agreement to vote, then the
Property Trustee shall take such action as is directed by the Corporation and if
not so directed, shall take such action as it deems advisable and in the best
interests of the holders of the Trust Securities and will have no liability
except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Issuers in such a way that no Issuer will be
deemed to be an "investment company" required to be registered under the
Investment Company Act or taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes and so that the
Corresponding Junior Subordinated Debentures will be treated as indebtedness of
the Corporation for United States federal income tax purposes. In this
connection, the Corporation and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of trust
of each Issuer or each Trust Agreement, that the Corporation and the
Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the related Preferred
Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No Issuer may borrow money or issue debt or mortgage or pledge any of its
assets.
BOOK-ENTRY ISSUANCE
DTC will act as securities depositary for all of the Preferred Securities
and the Junior Subordinated Debentures, unless otherwise referred to in the
Prospectus Supplement relating to an offering of Preferred Securities or Junior
Subordinated Debentures. Unless otherwise specified in the applicable Prospectus
Supplement, the Preferred Securities and the Junior Subordinated Debentures will
be issued only as fully-registered securities registered in the name of Cede &
Co. (DTC's nominee). One or more fully-registered global certificates will be
issued for the Preferred Securities of each Issuer and the Junior Subordinated
Debentures, representing in the aggregate the total number of such Issuer's
Preferred Securities or aggregate principal balance of Junior Subordinated
Debentures, respectively, and will be deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the
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settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. "Direct Participants" include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. DTC is owned by a number of its Direct Participants and by
the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain custodial relationships with Direct
Participants, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Purchases of Preferred Securities or Junior Subordinated Debentures within
the DTC system must be made by or through Direct Participants, which will
receive a credit for the Preferred Securities or Junior Subordinated Debentures
on DTC's records. The ownership interest of each actual purchaser of each
Preferred Security and each Junior Subordinated Debenture ("Beneficial Owner")
is in turn to be recorded on the Direct and Indirect Participants' records.
Beneficial Owners will not receive written confirmation from DTC of their
purchases, but Beneficial Owners are expected to receive written confirmations
providing details of the transactions, as well as periodic statements of their
holdings, from the Direct or Indirect Participants through which the Beneficial
Owners purchased Preferred Securities or Junior Subordinated Debentures.
Transfers of ownership interests in the Preferred Securities or Junior
Subordinated Debentures are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in Preferred
Securities or Junior Subordinated Debentures, except in the event that use of
the book-entry system for the Preferred Securities of such Issuer or Junior
Subordinated Debentures is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities or Junior Subordinated Debentures; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Preferred Securities
or Junior Subordinated Debentures are credited, which may or may not be the
Beneficial Owners. The Participants will remain responsible for keeping account
of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners will
be governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Preferred Securities or Junior Subordinated Debentures. If less than all of
an Issuer's Preferred Securities or the Junior Subordinated Debentures are being
redeemed, DTC's current practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
Although voting with respect to the Preferred Securities or the Junior
Subordinated Debentures is limited to the holders of record of the Preferred
Securities or Junior Subordinated Debentures, in those instances in which a vote
is required, neither DTC nor Cede & Co. will itself consent or vote with respect
to Preferred Securities or Junior Subordinated Debentures. Under its usual
procedures, DTC would mail an omnibus proxy (the "Omnibus Proxy") to the
relevant Trustee as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants to
whose accounts such Preferred Securities or Junior Subordinated Debentures are
credited on the record date (identified in a listing attached to the Omnibus
Proxy).
Distribution payments on the Preferred Securities or the Junior
Subordinated Debentures will be made by the relevant Trustee to DTC. DTC's
practice is to credit Direct Participants' accounts on the relevant payment date
in accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by
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Participants to Beneficial Owners will be governed by standing instructions and
customary practices and will be the responsibility of such Participant and not
of DTC, the relevant Trustee, the Issuer thereof or the Corporation, subject to
any statutory or regulatory requirements as may be in effect from time to time.
Payment of Distributions to DTC is the responsibility of the relevant Trustee,
disbursement of such payments to Direct Participants is the responsibility of
DTC, and disbursements of such payments to the Beneficial Owners is the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to any of the Preferred Securities or the Junior Subordinated Debentures
at any time by giving reasonable notice to the relevant Trustee and the
Corporation. In the event that a successor securities depositary is not
obtained, definitive Preferred Security or Junior Subordinated Debenture
certificates representing such Preferred Securities or Junior Subordinated
Debentures are required to be printed and delivered. The Corporation, at its
option, may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor depositary). After a Debenture Event of Default, the
holders of a majority in liquidation preference of Preferred Securities or
aggregate principal amount of Junior Subordinated Debentures may determine to
discontinue the system of book-entry transfers through DTC. In any such event,
definitive certificates for such Preferred Securities or Junior Subordinated
Debentures will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuers and the Corporation believe to
be accurate, but the Issuers and the Corporation assume no responsibility for
the accuracy thereof. Neither the Issuers nor the Corporation has any
responsibility for the performance by DTC or its Participants of their
respective obligations as described herein or under the rules and procedures
governing their respective operations.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Corporation concurrently
with the issuance by each Issuer of its Preferred Securities for the benefit of
the holders from time to time of such Preferred Securities. The Bank of New York
will act as indenture trustee ("Guarantee Trustee") under each Guarantee for the
purposes of compliance with the Trust Indenture Act and each Guarantee will be
qualified as an indenture under the Trust Indenture Act. This summary of certain
provisions of the Guarantees, which summarizes material terms thereof, does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of each Guarantee, including the definitions
therein of certain terms, and the Trust Indenture Act, to each of which
reference is hereby made. The form of the Guarantee has been filed as an exhibit
to the Registration Statement of which this Prospectus forms a part. Reference
in this summary to Preferred Securities means that Issuer's Preferred Securities
to which a Guarantee relates. The Guarantee Trustee will hold each Guarantee for
the benefit of the holders of the related Issuer's Preferred Securities.
GENERAL
The Corporation will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined below)
to the holders of the Preferred Securities, as and when due, regardless of any
defense, right of set-off or counterclaim that such Issuer may have or assert
other than the defense of payment. The following payments with respect to the
Preferred Securities, to the extent not paid by or on behalf of the related
Issuer (the "Guarantee Payments"), will be subject to the Guarantee: (i) any
accumulated and unpaid Distributions required to be paid on such Preferred
Securities, to the extent that such Issuer has funds on hand available therefor
at such time, (ii) the Redemption Price with respect to any Preferred Securities
called for redemption, to the extent that such Issuer has funds on hand
available therefor at such
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time, or (iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of such Issuer (unless the Corresponding Junior Subordinated
Debentures are distributed to holders of such Preferred Securities in exchange
therefor), the lesser of (a) the Liquidation Distribution to the extent that
such Issuer has funds on hand availabe therefor at such time and (b) the amount
of assets of such Issuer remaining available for distribution to holders of
Preferred Securities after satisfaction of liabilities to creditors of such
Issuer as required by applicable law. The Corporation's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Corporation to the holders of the applicable Preferred Securities or by
causing the Issuer to pay such amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the related Issuer's obligations under the Preferred Securities, but will apply
only to the extent that such related Issuer has funds sufficient to make such
payments, and is not a guarantee of collection.
If the Corporation does not make interest payments on the Corresponding
Junior Subordinated Debentures held by the Issuer, the Issuer will not be able
to pay Distributions on the Preferred Securities and will not have funds legally
available therefor. Each Guarantee will rank subordinate and junior in right of
payment to all Senior Indebtedness of the Corporation. See "-- Status of the
Guarantees". Because the Corporation is a holding company, the right of the
Corporation to participate in any distribution of assets of any subsidiary upon
such subsidiary's liquidation or reorganization or otherwise, is subject to the
prior claims of creditors of that subsidiary, except to the extent the
Corporation may itself be recognized as a creditor of that subsidiary.
Accordingly, the Corporation's obligations under the Guarantees will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and claimants should look only to the assets of the
Corporation for payments thereunder. Except as otherwise provided in the
applicable Prospectus Supplement, the Guarantees do not limit the incurrence or
issuance of other secured or unsecured debt of the Corporation, including Senior
Debt, whether under the Indenture, any other existing indenture or any other
indenture that the Corporation may enter into in the future or otherwise. See
the applicable Prospectus Supplement relating to any offering of Preferred
Securities.
The Corporation has, through the applicable Guarantee, the applicable Trust
Agreement, the applicable series of Corresponding Junior Subordinated Debentures
and the Indenture, taken together, fully, irrevocably and unconditionally
guaranteed all of the Issuer's obligations under the Preferred Securities. No
single document standing alone or operating in conjunction with fewer than all
of the other documents constitutes such guarantee. It is only the combined
operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Issuer's obligations under the
Preferred Securities. See "Relationship Among the Preferred Securities, the
Corresponding Junior Subordinated Debentures and the Guarantees".
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Corporation
and will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Corporation in the same manner as the Junior Subordinated
Debentures.
Each Guarantee will rank pari passu with all other Guarantees issued by the
Corporation. Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Guarantor to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity). Each
Guarantee will be held for the benefit of the holders of the related Preferred
Securities. Each Guarantee will not be discharged except by payment of the
Guarantee Payments in full to the extent not paid by the Issuer or upon
distribution to the holders of the Preferred Securities of the Corresponding
Junior Subordinated Debentures. None of the Guarantees places a limitation on
the amount of additional Senior Indebtedness that may be incurred by the
Corporation. The Corporation expects from time to time to incur additional
indebtedness constituting Senior Indebtedness.
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AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the related Preferred Securities (in which case no vote
will be required), no Guarantee may be amended without the prior approval of the
holders of not less than a majority of the aggregate Liquidation Amount of the
related outstanding Preferred Securities. The manner of obtaining any such
approval will be as set forth under "Description of Preferred
Securities -- Voting Rights; Amendment of Each Trust Agreement". All guarantees
and agreements contained in each Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Corporation and shall inure to
the benefit of the holders of the related Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of the
Corporation to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
related Preferred Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of such Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under such Guarantee.
Any holder of the Preferred Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under such Guarantee
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Corporation in performance of any Guarantee, undertakes to
perform only such duties as are specifically set forth in each Guarantee and,
after default with respect to any Guarantee, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by any Guarantee at the
request of any holder of any Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Preferred Securities, upon
full payment of the amounts payable upon liquidation of the related Issuer or
upon distribution of Corresponding Junior Subordinated Debentures to the holders
of the related Preferred Securities in exchange therefor. Each Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of the related Preferred Securities must restore payment of any
sums paid under such Preferred Securities or such Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the
laws of the State of New York.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent the Issuer has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Corporation as and to the
extent set forth under "Description of Guarantees". Taken together, the
Corporation's obligations under each series of Corresponding Junior Subordinated
Debentures, the Indenture, the related Trust Agreement and the related Guarantee
provide, in the aggregate, a full, irrevocable and unconditional guarantee of
payments of distributions and other amounts due on the Related Preferred
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Issuer's obligations under the
Related Preferred Securities. If and to the extent that the Corporation does not
make payments on any series of Corresponding Junior Subordinated Debentures,
such Issuer will not pay Distributions or other amounts due on the Related
Preferred Securities. The Guarantees do not cover payment of Distributions when
the related Issuer does not have sufficient funds to pay such Distributions. In
such event, the remedy of a holder of a series of Preferred Securities is to
institute a legal proceeding directly against the Corporation pursuant to the
terms of the Indenture for enforcement of payment of amounts equal to such
Distributions to such holder. The obligations of the Corporation under each
Guarantee are subordinate and junior in right of payment to all Senior
Indebtedness of the Corporation.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
each series of Corresponding Junior Subordinated Debentures, such payments will
be sufficient to cover Distributions and other payments due on the Related
Preferred Securities, primarily because (i) the aggregate principal amount of
each series of Corresponding Junior Subordinated Debentures will be equal to the
sum of the aggregate stated Liquidation Amount of the Related Preferred
Securities and related Common Securities; (ii) the interest rate and interest
and other payment dates on each series of Corresponding Junior Subordinated
Debentures will match the Distribution rate and Distribution and other payment
dates for the Related Preferred Securities; (iii) the Holder of the Common
Securities shall pay for all and any costs, expenses and liabilities of such
Issuer except the Issuer's obligations to holders of its Preferred Securities
under such Preferred Securities; and (iv) each Trust Agreement further provides
that the Issuer will not engage in any activity that is not consistent with the
limited purposes of such Issuer.
Notwithstanding anything to the contrary in the Indenture, the Corporation
has the right to set-off any payment it is otherwise required to make thereunder
with and to the extent the Corporation has theretofore made, or is concurrently
on the date of such payment making, a payment under the related Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any related Preferred Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the related
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer or any other person or entity.
A default or event of default under any Senior Indebtedness of the
Corporation would not constitute a default or Event of Default under the
Indenture. However, in the event of payment defaults under, or acceleration of,
Senior Indebtedness of the Corporation, the subordination provisions of the
Indenture provide that no payments may be made in respect of the Corresponding
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<PAGE> 72
Junior Subordinated Debentures until such Senior Indebtedness has been paid in
full or any payment default thereunder has been cured or waived. Failure to make
required payments on any series of Corresponding Junior Subordinated Debentures
would constitute a Debenture Event of Default under the Indenture.
LIMITED PURPOSE OF ISSUERS
Each Issuer's Preferred Securities evidence a beneficial interest in such
Issuer, and each Issuer exists for the sole purpose of issuing its Preferred
Securities and Common Securities and investing the proceeds thereof in
Corresponding Junior Subordinated Debentures. A principal difference between the
rights of a holder of a Preferred Security and a holder of a Corresponding
Junior Subordinated Debenture is that a holder of a Corresponding Junior
Subordinated Debenture is entitled to receive from the Corporation the principal
amount of and interest accrued on Corresponding Junior Subordinated Debentures
held, while a holder of Preferred Securities is entitled to receive
Distributions from such Issuer (or from the Corporation under the applicable
Guarantee) if and to the extent such Issuer has funds available for the payment
of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding up or liquidation of
any Issuer involving the liquidation of the Corresponding Junior Subordinated
Debentures, the holders of the related Preferred Securities will be entitled to
receive, out of the assets held by such Issuer, the Liquidation Distribution in
cash. See "Description of Preferred Securities -- Liquidation Distribution Upon
Termination". Upon any voluntary or involuntary liquidation or bankruptcy of the
Corporation, the Property Trustee, as holder of the Corresponding Junior
Subordinated Debentures, would be a subordinated creditor of the Corporation,
subordinated in right of payment to all Senior Indebtedness as set forth in the
Indenture, but entitled to receive payment in full of principal and interest,
before any stockholders of the Corporation receive payments or distributions.
Since the Corporation is the guarantor under each Guarantee and the Holder of
the Common Securities is obligated to pay for all costs, expenses and
liabilities of each Issuer (other than the Issuer's obligations to the holders
of its Preferred Securities), the positions of a holder of such Preferred
Securities and a holder of such Corresponding Junior Subordinated Debentures
relative to other creditors and to stockholders of the Corporation in the event
of liquidation or bankruptcy of the Corporation are expected to be substantially
the same.
PLAN OF DISTRIBUTION
The Junior Subordinated Debentures or the Preferred Securities may be sold
in a public offering to or through underwriters or dealers designated from time
to time. The Corporation and each Issuer may sell its Junior Subordinated
Debentures or Preferred Securities as soon as practicable after effectiveness of
the Registration Statement of which this Prospectus forms a part. The names of
any underwriters or dealers involved in the sale of the Junior Subordinated
Debentures or Preferred Securities in respect of which this Prospectus is
delivered, the amount or number of Junior Subordinated Debentures and Preferred
Securities to be purchased by any such underwriters and any applicable
commissions or discounts will be set forth in the applicable Prospectus
Supplement.
Underwriters may offer and sell Junior Subordinated Debentures or Preferred
Securities at a fixed price or prices, which may be changed, or from time to
time at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. In connection with the sale of
Preferred Securities, underwriters may be deemed to have received compensation
from the Corporation and/or the applicable Issuer in the form of underwriting
discounts or commissions and may also receive commissions. Underwriters may sell
Junior Subordinated Debentures or Preferred Securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters.
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<PAGE> 73
Any underwriting compensation paid by the Corporation and/or the applicable
Issuer to underwriters or dealers in connection with the offering of Junior
Subordinated Debentures or Preferred Securities, and any discounts, concessions
or commissions allowed by such underwriters to participating dealers, will be
described in an accompanying Prospectus Supplement. Underwriters and dealers
participating in the distribution of Junior Subordinated Debentures or Preferred
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of such Junior
Subordinated Debentures or Preferred Securities may be deemed to be underwriting
discounts and commissions, under the Securities Act.
In connection with the offering of the Preferred Securities of any Issuer,
such Issuer may grant to the underwriters an option to purchase additional
Preferred Securities to cover over-allotments, if any, at the initial public
offering price (with an additional underwriting commission), as may be set forth
in the accompanying Prospectus Supplement. If such Issuer grants any
over-allotment option, the terms of such over-allotment option will be set forth
in the Prospectus Supplement for such Preferred Securities.
The Corporation and each Issuer may also sell their Junior Subordinated
Debentures or Preferred Securities directly to purchasers or through agents. In
such case, offers to purchase Junior Subordinated Debentures or Preferred
Securities may be solicited directly by the Corporation or an Issuer, or by
agents designated by the Corporation or an Issuer. Any such agent, who may be
deemed to be an underwriter, as that term is defined in the Securities Act,
involved in the offer and sale of such securities in respect of which this
Prospectus is delivered will be named, and any commission payable by the
Corporation or the applicable Issuer to such agent will be set forth in the
applicable Prospectus Supplement.
Underwriters, dealers and agents may be entitled, under agreements with the
Corporation and the applicable Issuer, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act, and to reimbursement by the Corporation for certain expenses.
Underwriters, dealers, and agents may engage in transactions with, or
perform services for, the Corporation and/or the applicable Issuer and/or any of
their affiliates in the ordinary course of business.
The Junior Subordinated Debentures and the Preferred Securities will be new
issues of securities and will have no established trading market. Any
underwriters to whom Junior Subordinated Debentures or Preferred Securities are
sold for public offering and sale may make a market in such Junior Subordinated
Debentures and Preferred Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. Such
Junior Subordinated Debentures or Preferred Securities may or may not be listed
on a national securities exchange or the Nasdaq National Market. No assurance
can be given as to the liquidity of or the existence of trading markets for any
Junior Subordinated Debentures or Preferred Securities.
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<PAGE> 74
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, certain
legal matters will be passed upon for the Corporation by Sullivan & Cromwell,
counsel to the Corporation, and for the Issuers by Richards, Layton & Finger,
special Delaware counsel to the Issuers and the Corporation. Certain other
matters will be passed upon for the Corporation by Harry A. Johnson, III, Esq.,
Executive Vice President and General Counsel of the Corporation. The validity of
the Guarantees and the Junior Subordinated Debentures will be passed upon for
the Corporation by Sullivan & Cromwell and for the Underwriters by Simpson
Thacher & Bartlett. Sullivan & Cromwell and Simpson Thacher & Bartlett will rely
on the opinion of Richards, Layton & Finger as to matters of Delaware law and on
the opinion of Mr. Johnson as to matters of Tennessee Law. At December 2, 1996,
Mr. Johnson beneficially owned approximately 73,700 shares of the Corporation's
common stock.
EXPERTS
The consolidated financial statements of the Corporation included in the
Corporation's Annual Report on Form 10-K for the year ended December 31, 1995,
incorporated herein by reference, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report, dated January 16,
1996, and are incorporated herein by reference, in reliance upon the authority
of said firm as experts in accounting and auditing in giving said report.
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION OR BY THE UNDERWRITERS.
NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS NOR ANY
SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE CORPORATION
SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT
CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER
OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
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TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Risk Factors............................... S-6
First Tennessee Capital I.................. S-11
First Tennessee National Corporation....... S-12
Consolidated Ratios of Earnings to Fixed
Charges and Combined Fixed Charges and
Preferred Stock Dividend Requirements.... S-13
Use of Proceeds............................ S-14
Capitalization............................. S-15
Accounting Treatment....................... S-16
Certain Terms of Series A QUIPS............ S-17
Certain Terms of Series A Subordinated
Debentures............................... S-20
Certain Terms of Series A Guarantee........ S-24
Certain Federal Income Tax Consequences.... S-25
Underwriting............................... S-28
Validity of Securities..................... S-29
PROSPECTUS
Available Information...................... 3
Incorporation of Certain Documents by
Reference................................ 4
First Tennessee National Corporation....... 4
Certain Regulatory Considerations.......... 5
The Issuers................................ 11
Use of Proceeds............................ 12
Description of Junior Subordinated
Debentures............................... 12
Description of Preferred Securities........ 25
Book-Entry Issuance........................ 37
Description of Guarantees.................. 39
Relationship Among the Preferred
Securities, the Corresponding Junior
Subordinated Debentures and the
Guarantees............................... 42
Plan of Distribution....................... 43
Validity of Securities..................... 45
Experts.................................... 45
</TABLE>
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PREFERRED SECURITIES
FIRST TENNESSEE CAPITAL I
% CUMULATIVE QUARTERLY INCOME
PREFERRED SECURITIES,
SERIES A (QUIPS(SM))
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
FIRST TENNESSEE
NATIONAL CORPORATION
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LOGO
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GOLDMAN, SACHS & CO.
REPRESENTATIVES OF THE UNDERWRITERS
, 1996
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