<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 1996
REGISTRATION NOS. 333-17457, 333-17457-01, 333-17457-02, 333-17457-03,
333-17457-04
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
FIRST TENNESSEE NATIONAL CORPORATION FIRST TENNESSEE CAPITAL I
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) FIRST TENNESSEE CAPITAL II
TENNESSEE FIRST TENNESSEE CAPITAL III
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) FIRST TENNESSEE CAPITAL IV
62-0803242 (EXACT NAME OF EACH REGISTRANT AS SPECIFIED IN ITS TRUST
(I.R.S. EMPLOYER IDENTIFICATION NO.) AGREEMENT)
165 MADISON AVENUE, MEMPHIS, TENNESSEE 38103 DELAWARE
(901) 523-4444 (STATE OR OTHER JURISDICTION OF INCORPORATION
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING OR ORGANIZATION OF EACH REGISTRANT)
AREA CODE, 62-6314154
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) 62-6314155
62-6314156
62-6314157
(I.R.S. EMPLOYER IDENTIFICATION NO.)
C/O FIRST TENNESSEE NATIONAL CORPORATION
165 MADISON AVENUE, MEMPHIS, TENNESSEE 38103
(901) 523-4444
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE,
OF EACH REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
------------------------
HARRY A. JOHNSON, III
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
FIRST TENNESSEE NATIONAL CORPORATION
165 MADISON AVENUE, MEMPHIS, TENNESSEE 38103
(901) 523-4444
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF EACH REGISTRANT)
WITH COPIES TO:
<TABLE>
<S> <C>
PATRICIA A. CERUZZI LEE MEYERSON
SULLIVAN & CROMWELL SIMPSON THACHER & BARTLETT
125 BROAD STREET, NEW YORK, NEW YORK 10004 425 LEXINGTON AVENUE, NEW YORK, NEW YORK 10017
(212) 558-4000 (212) 455-2000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the Registration Statement becomes effective.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
Junior Subordinated Deferrable Interest Debentures of
First Tennessee National Corporation(2)............ 12,000,000 $25 $300,000,000 $90,910(6)
- ----------------------------------------------------------------------------------------------------------------------------------
Preferred Securities of First Tennessee Capital I,
First Tennessee Capital II, First Tennessee Capital
III, First Tennessee Capital IV.................... $300,000,000 $25 $300,000,000 NA
- ----------------------------------------------------------------------------------------------------------------------------------
First Tennessee National Corporation Guarantee with
respect to Preferred Securities(3)(4).............. NA NA NA NA
- ----------------------------------------------------------------------------------------------------------------------------------
Total................................................ $300,000,000(5) 100% $300,000,000(5) $90,910(6)
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures will be purchased by
First Tennessee Capital I, First Tennessee Capital II, First Tennessee
Capital III and First Tennessee Capital IV with the proceeds of the sale of
the Preferred Securities.
(3) No separate consideration will be received for the First Tennessee National
Corporation Guarantee.
(4) This Registration Statement is deemed to cover the Junior Subordinated
Deferrable Interest Debentures of First Tennessee National Corporation, the
rights of holders of Junior Subordinated Deferrable Interest Debentures of
First Tennessee National Corporation under the Indenture, the rights of
holders of Preferred Securities of First Tennessee Capital I, First
Tennessee Capital II, First Tennessee Capital III, and First Tennessee
Capital IV under each Trust Agreement, the rights of holders of the
Preferred Securities under the Guarantees, which, taken together, fully,
irrevocably and unconditionally guarantee all of the respective obligations
of First Tennessee Capital I, First Tennessee Capital II, First Tennessee
Capital III and First Tennessee Capital IV under the Preferred Securities.
(5) Such amount represents the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at their principal amount and the
issue price rather than the principal amount of Junior Subordinated
Deferrable Interest Debentures issued at an original issue discount. Such
amount also represents the initial public offering price of the First
Tennessee Capital I, First Tennessee Capital II, First Tennessee Capital III
and First Tennessee Capital IV Preferred Securities.
(6) This amount has previously been paid.
------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933, as amended............ $ 90,910
Blue Sky fees and expenses (including counsel fees)...................... 30,000
Fees of rating agencies.................................................. 200,000
Trustees' fees and expenses.............................................. 20,000
Printing and engraving................................................... 20,000
Accounting services...................................................... 30,000
Legal fees of Registrant's counsel....................................... 200,000
Miscellaneous............................................................ 9,090
----------
Total.......................................................... $600,000
==========
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Tennessee Code Annotated, Sections 48-18-501 through 48-18-509 authorizes a
corporation to provide for the indemnification of officers, directors, employees
and agents in terms sufficiently broad to permit indemnification under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended. The Corporation has
adopted the provisions of the Tennessee statute pursuant to Article XXVIII of
its Bylaws. Also, the Corporation has a Directors' and Officers' Liability
Insurance Policy which provides coverage sufficiently broad to permit
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1931,
as amended.
Tennessee Code Annotated Section 48-12-102 permits the inclusion in the
charter of a Tennessee corporation of a provision, with certain exceptions,
eliminating the personal monetary liability of directors to the corporation or
its shareholders for breach of the duty of care. The Corporation has adopted the
provisions of the statute in Article 13 of its charter.
The shareholders of the Corporation have approved an amendment to Article
XXVIII of the Bylaws pursuant to which the Corporation is required to indemnify
each director and any officers designated by the Corporation's Board of
Directors, and advance expenses, to the maximum extent not prohibited by law. In
accordance with the foregoing, the Board is authorized to enter into individual
indemnity agreements with the directors and such officers. Such indemnity
agreements have been approved for all of the directors and certain officers.
Reference is also made to the Underwriting Agreement filed as an Exhibit
hereto, for provisions regarding indemnification of the registrant's officers
and directors against certain liabilities.
Under the Trust Agreement, the Corporation will agree to indemnify each of
the Trustees of the Issuer or any predecessor Trustee for the Issuer, and to
hold the Trustee harmless against, any loss, damage, claims, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the Trust Agreements,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties under the Trust Agreements.
II-1
<PAGE> 3
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
1 Form of Underwriting Agreement.
4.1 Restated Charter of the Corporation, as amended (incorporated by reference to
Exhibit 3(i) to the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995).
4.2 By-laws, as amended, of the Corporation (incorporated by reference to Exhibit 3(ii)
of the Corporation's Quarterly Report on Form 10-Q, for the quarter ended June 30,
1996).
4.3 Form of Junior Subordinated Indenture, to be dated as of , 1996,
between the Corporation and The Bank of New York, as Debenture Trustee.*
4.4 Certificate of Trust of First Tennessee Capital I.*
4.5 Trust Agreement of First Tennessee Capital I.*
4.6 Certificate of Trust of First Tennessee Capital II.*
4.7 Trust Agreement of First Tennessee Capital II.*
4.8 Certificate of Trust of First Tennessee Capital III.*
4.9 Trust Agreement of First Tennessee Capital III.*
4.10 Certificate of Trust of First Tennessee Capital IV.*
4.11 Trust Agreement of First Tennessee Capital IV.*
4.12 Form of Amended and Restated Trust Agreement of First Tennessee Capital I.*
4.13 Form of Amended and Restated Trust Agreement of First Tennessee Capital II.*
4.14 Form of Amended and Restated Trust Agreement of First Tennessee Capital III.*
4.15 Form of Amended and Restated Trust Agreement of First Tennessee Capital IV.*
4.16 Form of Junior Subordinated Debenture Certificate (included in Exhibit 4.3).*
4.17 Form of Preferred Security Certificate for First Tennessee Capital I (included as
Exhibit D of Exhibit 4.12).*
4.18 Form of Preferred Security Certificate for First Tennessee Capital II (included as
Exhibit D of Exhibit 4.13).*
4.19 Form of Preferred Security Certificate for First Tennessee Capital III (included as
Exhibit D of Exhibit 4.14).*
4.20 Form of Preferred Security Certificate for First Tennessee Capital IV (included as
Exhibit D of Exhibit 4.15).*
4.21 Form of Guarantee Agreement for First Tennessee Capital I.*
4.22 Form of Guarantee Agreement for First Tennessee Capital II.*
4.23 Form of Guarantee Agreement for First Tennessee Capital III.*
4.24 Form of Guarantee Agreement for First Tennessee Capital IV.*
5.1 Opinion of Counsel as to legality of the Junior Subordinated Debentures and the
Guarantees to be issued by the Corporation.
5.2 Opinion of Special Counsel as to legality of the Junior Subordinated Debentures and
the Guarantees to be issued by the Corporation.
5.3 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital I.
5.4 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital II.
5.5 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital III.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
5.6 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital IV.
8 Opinion of counsel as to certain federal income tax matters.
12 Statement Regarding Computation of Consolidated Ratios of Earnings to Fixed Charges
and Combined Fixed Charges and Preferred Stock Dividend Requirements.*
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Counsel to the Corporation. (included in Exhibit 5.1).
23.3 Consent of Special Counsel to the Corporation (included in Exhibit 5.2).
23.4 Consent of Special Delaware Counsel (included in Exhibit 5.3).
23.5 Consent of Special Delaware Counsel (included in Exhibit 5.4).
23.6 Consent of Special Delaware Counsel (included in Exhibit 5.5).
23.7 Consent of Special Delaware Counsel (included in Exhibit 5.6).
23.8 Consent of tax counsel (included in Exhibit 8).
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Junior Subordinated Indenture.*
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital I.*
25.3 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital II.*
25.4 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital III.*
25.5 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital IV.*
25.6 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital I.*
25.7 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital II.*
25.8 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital III.*
25.9 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital IV.*
</TABLE>
- ---------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, each Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as
II-3
<PAGE> 5
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by each
Registrant of expenses incurred or paid by a director, officer or controlling
person of each Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, each Registrant will, unless in
the opinion of its counsel the matter has been settled by the controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
Each of the undersigned Registrants hereby also undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by a Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) to provide to the underwriter at the closing specified in the
underwriting agreement certificates in such denominations and registered in such
names as required by the underwriter to permit prompt delivery to each
purchaser.
(5) That, for the purposes of determining any liability under the
Securities Act of 1933:
(i) The information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
the form of prospectus filed by the Registrants pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared effective.
(ii) Each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Memphis, State of Tennessee, on the 17th day of
December, 1996.
FIRST TENNESSEE NATIONAL CORPORATION
By: ELBERT L. THOMAS, JR.
-----------------------------------
Name: Elbert L. Thomas, Jr.
Title: Executive Vice President
and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------- ----------------------------------- -------------------
<C> <S> <C>
* Chairman of the Board, President December 17, 1996
- ------------------------------- and Chief Executive Officer
Ralph Horn (principal executive officer) and
a Director
* Executive Vice President and Chief December 17, 1996
- ------------------------------- Financial Officer (principal
Elbert L. Thomas, Jr. financial officer)
* Senior Vice President and December 17, 1996
- ------------------------------- Controller (principal accounting
James F. Keen officer)
Director December , 1996
- -------------------------------
Robert C. Blattberg
* Director December 17, 1996
- -------------------------------
Carlos H. Cantu
* Director December 17, 1996
- -------------------------------
George E. Cates
Director December , 1996
- -------------------------------
J. Kenneth Glass
Director December , 1996
- -------------------------------
James A. Haslam, III
Director December , 1996
- -------------------------------
John C. Kelley, Jr.
* Director December 17, 1996
- -------------------------------
R. Brad Martin
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------- ----------------------------------- -------------------
<C> <S> <C>
* Director December 17, 1996
- -------------------------------
Joseph Orgill, III
* Director December 17, 1996
- -------------------------------
Vicki G. Roman
* Director December 17, 1996
- -------------------------------
Michael D. Rose
* Director December 17, 1996
- -------------------------------
William B. Sansom
* Director December 17, 1996
- -------------------------------
Gordon P. Street, Jr.
</TABLE>
*By: CLYDE A. BILLINGS, JR.
Clyde A. Billings, Jr.
Attorney-in-Fact
II-6
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, First Tennessee
Capital I certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Memphis, and State of Tennessee on the 17th day of
December, 1996.
FIRST TENNESSEE CAPITAL I
By: First Tennessee National
Corporation, as Depositor
By: TERESA A. FEHRMAN
------------------------------------
Teresa A. Fehrman
Pursuant to the requirements of the Securities Act of 1933, First Tennessee
Capital II certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Memphis, and State of Tennessee on the 17th day of
December, 1996.
FIRST TENNESSEE CAPITAL II
By: First Tennessee National
Corporation, as Depositor
By: TERESA A. FEHRMAN
------------------------------------
TERESA A. FEHRMAN
Pursuant to the requirements of the Securities Act of 1933, First Tennessee
Capital III certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this Amendment
to the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Memphis, and State of Tennessee on the 17th day of
December, 1996.
FIRST TENNESSEE CAPITAL III
By: First Tennessee National
Corporation, as Depositor
By: TERESA A. FEHRMAN
------------------------------------
TERESA A. FEHRMAN
II-7
<PAGE> 9
Pursuant to the requirements of the Securities Act of 1933, First Tennessee
Capital IV certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Memphis, and State of Tennessee on the 17th day of
December, 1996.
FIRST TENNESSEE CAPITAL IV
By: First Tennessee National
Corporation, as Depositor
By: TERESA A. FEHRMAN
------------------------------------
TERESA A. FEHRMAN
II-8
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
1 Form of Underwriting Agreement.
4.1 Restated Charter of the Corporation, as amended (incorporated by reference to
Exhibit 3(i) to the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995).
4.2 By-laws, as amended, of the Corporation (incorporated by reference to Exhibit 3(ii)
of the Corporation's Quarterly Report on Form 10-Q, for the quarter ended June 30,
1996).
4.3 Form of Junior Subordinated Indenture, to be dated as of , 1996,
between the Corporation and The Bank of New York, as Debenture Trustee.*
4.4 Certificate of Trust of First Tennessee Capital I.*
4.5 Trust Agreement of First Tennessee Capital I.*
4.6 Certificate of Trust of First Tennessee Capital II.*
4.7 Trust Agreement of First Tennessee Capital II.*
4.8 Certificate of Trust of First Tennessee Capital III.*
4.9 Trust Agreement of First Tennessee Capital III.*
4.10 Certificate of Trust of First Tennessee Capital IV.*
4.11 Trust Agreement of First Tennessee Capital IV.*
4.12 Form of Amended and Restated Trust Agreement of First Tennessee Capital I.*
4.13 Form of Amended and Restated Trust Agreement of First Tennessee Capital II.*
4.14 Form of Amended and Restated Trust Agreement of First Tennessee Capital III.*
4.15 Form of Amended and Restated Trust Agreement of First Tennessee Capital IV.*
4.16 Form of Junior Subordinated Debenture Certificate (included in Exhibit 4.3).*
4.17 Form of Preferred Security Certificate for First Tennessee Capital I (included as
Exhibit D of Exhibit 4.12).*
4.18 Form of Preferred Security Certificate for First Tennessee Capital II (included as
Exhibit D of Exhibit 4.13).*
4.19 Form of Preferred Security Certificate for First Tennessee Capital III (included as
Exhibit D of Exhibit 4.14).*
4.20 Form of Preferred Security Certificate for First Tennessee Capital IV (included as
Exhibit D of Exhibit 4.15).*
4.21 Form of Guarantee Agreement for First Tennessee Capital I.*
4.22 Form of Guarantee Agreement for First Tennessee Capital II.*
4.23 Form of Guarantee Agreement for First Tennessee Capital III.*
4.24 Form of Guarantee Agreement for First Tennessee Capital IV.*
5.1 Opinion of counsel as to legality of the Junior Subordinated Debentures and the
Guarantees to be issued by the Corporation.
5.2 Opinion of Special Counsel as to legality of the Junior Subordinated Debentures and
the Guarantees to be issued by the Corporation.
5.3 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital I.
5.4 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital II.
</TABLE>
<PAGE> 11
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
5.5 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital III.
5.6 Opinion of Special Delaware Counsel as to legality of the Preferred Securities to
be issued by First Tennessee Capital IV.
8 Opinion of counsel as to certain federal income tax matters.
12 Statement Regarding Computation of Consolidated Ratios of Earnings to Fixed Charges
and Combined Fixed Charges and Preferred Stock Dividend Requirements.*
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Counsel to the Corporation. (included in Exhibit 5.1).
23.3 Consent of Special Counsel to the Corporation (included in Exhibit 5.2).
23.4 Consent of Special Delaware Counsel (included in Exhibit 5.3).
23.5 Consent of Special Delaware Counsel (included in Exhibit 5.4).
23.6 Consent of Special Delaware Counsel (included in Exhibit 5.5).
23.7 Consent of Special Delaware Counsel (included in Exhibit 5.6).
23.8 Consent of tax counsel (included in Exhibit 8).
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Junior Subordinated Indenture.*
25.2 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital I.*
25.3 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital II.*
25.4 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital III.*
25.5 Form T-1 Statement of Eligibility of The Bank of New York to act as trustee under
the Amended and Restated Trust Agreement of First Tennessee Capital IV.*
25.6 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital I.*
25.7 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital II.*
25.8 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital III.*
25.9 Form T-1 Statement of Eligibility of The Bank of New York under the Guarantee for
the benefit of the holders of Preferred Securities of First Tennessee Capital IV.*
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
EXHIBIT I
FIRST TENNESSEE CAPITAL I
FIRST TENNESSEE CAPITAL II
FIRST TENNESSEE CAPITAL III
FIRST TENNESSEE CAPITAL IV
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEES BY
FIRST TENNESSEE NATIONAL CORPORATION
Standard Provisions
_________ __, 199_
From time to time First Tennessee Capital I, First Tennessee Capital
II, First Tennessee Capital III or First Tennessee Capital IV, each a statutory
business trust formed under the laws of the State of Delaware (each a "Trust"
and collectively, the "Trusts"), and First Tennessee National Corporation, a
Tennessee corporation (the "Company"), as depositor of each trust and as
guarantor, may enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, pursuant to which, and subject to the terms
and conditions stated herein and therein, the Trust identified in the applicable
Pricing Agreement (such Trust being the "Designated Trust" with respect to such
Pricing Agreement) will propose to issue and sell to the firms named in Schedule
I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its preferred securities (the "Securities")
representing undivided beneficial interests in the assets of the Designated
Trust. The Securities specified in such Pricing Agreement are referred to as the
"Firm Designated Securities" with respect to such Pricing Agreement. If
specified in such Pricing Agreement, the Designated Trust may grant the
Underwriters the right to purchase at their election an additional number of
Securities, specified as provided in such Pricing Agreement as provided in
Section 3 hereof (the "Optional Designated Securities"). The Firm Designated
Securities and any Optional Designated Securities are collectively called the
"Designated Securities." The proceeds of the sale of the Designated Securities
to the public and of common securities of the Designated Trust (the "Common
Securities") to the Company concurrently with the sale of the Designated
Securities are to be invested in junior subordinated deferrable interest
debentures of the Company (the "Subordinated Debentures") identified in the
Pricing Agreement with respect to such Designated Securities (with respect to
such Pricing Agreement, the "Designated Subordinated Debentures"), to be issued
pursuant to a junior subordinated indenture to be dated as of December __, 1996
(the "Indenture") between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"). The Designated Securities may be exchangeable into
Designated Subordinated Debentures, as specified in Schedule II to such Pricing
Agreement. The Designated Securities will be guaranteed by the Company to the
extent set forth in the Pricing Agreement with respect to such Designated
Securities (the "Designated Guarantee") (all such Designated Guarantees
together, the "Guarantees").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement"). The standard provisions set forth herein (these "Standard
Provisions") may be incorporated by reference in any such Pricing Agreement. The
Pricing Agreement, including these Standard Provisions to the extent
incorporated therein by reference, is herein sometimes referred to as this
"Agreement".
<PAGE> 2
2
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. These Standard
Provisions shall not be construed as an obligation of any Trust to sell any of
the Securities or as an obligation of any of the Underwriters to purchase any of
the Securities. The obligation of any Trust to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate number of the Firm Designated Securities, the maximum number of
Optional Designated Securities, if any, the initial public offering price of
such Firm and Optional Designated Securities or the manner of determining such
price, the terms of the Designated Securities, including the terms on which and
terms of the securities into which the Designated Securities will be
exchangeable, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the number of such Designated
Securities to be purchased by each Underwriter and the commission, if any,
payable to the Underwriters with respect thereto and shall set forth the date,
time and manner of delivery of such Firm Designated Securities and Optional
Designated Securities, if any, and payment therefor. The Pricing Agreement shall
also specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The standard provisions set forth herein will be
incorporated by reference in any Pricing Agreement. The obligations of the
Underwriters under this Agreement shall be several and not joint.
2. Each of the Designated Trust and the Company, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-_____)
(the "Initial Registration Statement") in respect of the Securities,
the Subordinated Debentures and the Guarantees has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement,
but including all documents incorporated by reference in the prospectus
included therein, to the Representatives for each of the other
Underwriters has been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated
by reference therein has heretofore been filed, or transmitted for
filing, with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives); and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including (i) the information contained in the form
of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective or such
part of the Rule 462(b)
<PAGE> 3
3
Registration Statement, if any, became or hereafter becomes effective,
(ii) all exhibits thereto and (iii) the documents incorporated by
reference in the prospectus contained in the registration statement at
the time such part of the registration statement became effective but
excluding Forms T-1, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Securities, the Subordinated Debentures and the Guarantees, in the form
in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of any Trust, if any, the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of
the Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and, at the time of
effectiveness or filing, as the case may be, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and, at the time of effectiveness or filing, as the case may
be, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Designated Trust or the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information
<PAGE> 4
4
furnished in writing to the Designated Trust or the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(d) The financial statements (including the related notes and
supporting schedules) incorporated in the Prospectus present fairly the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated;
(e) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given or incorporated by
reference in the Registration Statement and the Prospectus, there has
not been any change in the capital stock (other than relating to
issuances pursuant to stock benefit plans and dividend reinvestment
plans and acquisitions of capital stock pursuant to announced share
repurchase programs) or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the Prospectus;
(f) The Designated Trust has been duly created and is validly
existing as a business trust in good standing under the laws of the
State of Delaware, with power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus
and has conducted and will conduct no business other than the
transactions contemplated by the Prospectus; the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Tennessee, with power and authority to
own, lease and operate its properties and conduct its business as
described in the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification
(other than where the failure to be so qualified or in good standing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole);
(g) The compliance by the Company and the Designated Trust
with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company,
the Designated Trust or any of their subsidiaries is a party or by
which the Company, the Designated Trust or any of their subsidiaries is
bound or to which any of the property or assets of the Company, the
Designated Trust or any of their subsidiaries is subject other than
such conflicts, breaches, violations or defaults which individually or
on a cumulative basis would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, nor will such action
result in any violation of the provisions of the Restated Charter or
By-laws, each as amended, of the Company, or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or the Designated Trust; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for sale
of the Designated Securities or the Designated Subordinated Debentures
or the consummation by the Company or the Designated Trust of the
transactions contemplated
<PAGE> 5
5
by this Agreement, except the registration under the Act of the
Designated Securities and the Designated Subordinated Debentures and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(h) The Designated Guarantee, the Trust Agreement for the
Designated Trust, the Designated Subordinated Debentures and the
Indenture (the Designated Guarantee, such Trust Agreement, the
Designated Subordinated Debentures and the Indenture being collectively
referred to as the "Company Agreements") have each been duly authorized
by the Company and when validly executed and delivered by the Company
and, in the case of the Guarantee, by the Guarantee Trustee (as defined
in the Guarantee), in the case of the Trust Agreement, by the Trustees
(as defined in the Trust Agreement) and, in the case of the Indenture,
by the Debenture Trustee, and, in the case of the Designated
Subordinated Debentures, when validly issued by the Company and duly
authenticated and delivered by the Debenture Trustee against payment
therefore as contemplated by the Company Agreements, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (regardless of whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing; the
Trust Agreement, the Indenture and the Designated Guarantee have each
been duly qualified under the Trust Indenture Act; the Designated
Subordinated Debentures are entitled to the benefits of the Indenture;
and the Company Agreements, which will be in substantially the form
filed as exhibits to the Registration Statement, will conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented with respect to the Designated Securities to
which they relate;
(i) The Common Securities and Designated Securities have been
duly authorized by the Designated Trust and upon issuance and delivery
and payment therefor in the manner described herein, will be duly
authorized, validly issued, fully paid and non-assessable and will
conform to their respective descriptions in the Prospectus;
(j) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject, as to which there
exists a reasonably likelihood of an adverse determination which is
reasonably likely, individually or on a cumulative basis, when
resolved, to have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, and, to the best of
the Company's knowledge, no such proceedings are threatened;
(k) The Company is not in violation of its restated charter
or by-laws, in each case as amended; and neither the Company nor any
of its subsidiaries is in default in the performance or observance of
any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound other than such defaults which
individually or on a cumulative basis would not have a material
adverse effect on the financial condition, operating results, business
or prospects of the Company and its subsidiaries taken as a whole or
on the issue and sale of the Designated Securities or consummation of
the transactions contemplated thereby;
(l) Neither the Company nor the Designated Trust is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder;
<PAGE> 6
6
(m) The Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act");
(n) The Company and each of its subsidiaries are in compliance
in all material respects with all laws administered by and regulations
of and any federal or state bank regulatory authority with jurisdiction
over the Company or any of its subsidiaries (the "Bank Regulatory
Authorities"), other than where such failures to comply would not have
a material adverse effect on the Company and its subsidiaries, taken as
a whole. Neither the Company nor any of its subsidiaries is a party to
any written agreement or memorandum of understanding with, or a party
to any commitment letter or similar undertaking to, or is subject to
any order or directive by, or is a recipient of any extraordinary
supervisory letter from, or has adopted any board resolutions at the
request of, any Bank Regulatory Authority which restricts materially
the conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor have any of them
been advised by any Bank Regulatory Authority that it is contemplating
issuing or requesting (or is considering the appropriateness of issuing
or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission, or any such board resolutions; and
(o) The Pricing Agreement with respect to the Designated
Securities (incorporating these Standard Provisions) and this Agreement
have been duly authorized, executed and delivered by the Company and
the Designated Trust.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
the Firm Designated Securities, the several Underwriters propose to offer the
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable to
any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised by written notice from the Representatives to the Designated Trust and
the Company, given within a period specified in the Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives but in no event earlier than the First Time of
Delivery (as defined in Section 4 hereof) or, unless the Representatives, the
Designated Trust and the Company otherwise agree in writing, earlier than or
later than the respective number of business days after the date of such notice
set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase.
<PAGE> 7
7
As compensation to the Underwriters of the Designated Securities for
their commitments hereunder and under the Pricing Agreement, and in view of the
fact that the proceeds of the sale of the Designated Securities will be used by
the Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to the
Representatives, for the accounts of the several Underwriters, the amount set
forth in the Pricing Agreement per preferred security for the Designated
Securities to be delivered at each Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Designated Trust and the Company, shall be delivered by or on behalf of the
Designated Trust to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same day) Funds to an account designated
by the Designated Trust, (i) with respect to the Firm Designated Securities, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives, the
Designated Trust and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Designated Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, herein called the "Second Time of
Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Designated Trust and the Company, jointly and severally, agree
with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to such Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); before amending or
supplementing the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to any Time of Delivery for such Securities, to
furnish to the Representatives a copy of each such proposed amendment
or supplement (other than an amendment by reason of filing a report
under the Exchange Act that is incorporated by reference in the
Registration Statement and does not relate specifically to the
Designated Securities) and not to file any such proposed amendment or
supplement to which the Representatives reasonably object; to advise
the Representatives promptly of any such amendment or supplement after
any Time of Delivery for the Designated Securities and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Designated Trust, if any, or the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with
the offering or sale of the Designated Securities, and during such same
period to advise the Representatives, promptly after it receives notice
thereof, of the time when any such amendment to the Registration
Statement has been filed or becomes effective or any such supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Designated Securities or the Designated Subordinated Debentures,
of the suspension of the qualification of the Designated Securities or
the Designated Subordinated Debentures for offering or sale in any
jurisdiction, of
<PAGE> 8
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the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any prospectus
relating to the Securities or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Designated Subordinated Debentures for offering and
sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith neither the Designated Trust nor the Company shall be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
in New York City as amended or supplemented in such quantities as the
Representatives may reasonably request, from time to time, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering sale of the Designated Securities or the
Designated Subordinated Debentures and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or,
if for any other reason it shall be necessary during such same period
to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture
Act, to notify the Representatives and upon their request to file
such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance.
(d) In the case of the Company, to make generally available to
its security holders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions
for such Designated Securities, as notified to the Designated Trust and
the Company by the Representatives and (ii) the last Time of Delivery
for such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any Securities, any
other beneficial interests in the assets of any Trust, or any preferred
securities or any other securities of any Trust or the Company, as the
case may be, that are substantially similar to such Designated
Securities (including any guarantee of such securities) or any
securities that are convertible into or exchangeable for, or that
represent the right to receive securities, preferred securities or any
such substantially similar securities of either any Trust or the
Company without the prior written consent of the Representatives;
<PAGE> 9
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(f) In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Securities as contemplated
herein or in the Pricing Agreement;
(g) If the Pricing Agreement provides that a condition
precedent to issuance of the Designated Securities at the Time of
Delivery is that the Designated Securities shall have been duly listed
subject to notice of issuance on the Nasdaq National Market System, to
use its best efforts to list, subject to notice of issuance, the
Designated Securities on the Nasdaq National Market System and, if the
Company elects to terminate the Designated Trust and to distribute the
Designated Subordinated Debentures to the holders of the Designated
Securities in liquidation of the Designated Trust, to use its best
efforts to list the Designated Subordinated Debentures, subject to
notice of issuance, on the Nasdaq National Market System prior to such
distribution; and
(h) If the Trust and the Company elect to rely upon Rule
462(b), the Trust and the Company shall file a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
A.M., Washington, D.C. time, on the first New York Business Day
following the date of the Pricing Agreement, and the Trust and the
Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
it will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities, the Guarantees and the Subordinated Debentures
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Company Agreement, the Securities and the Subordinated
Debentures, any Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities, the Guarantees and the Subordinated
Debentures for offering and sale under state securities laws as provided in
Section 5 (b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky survey(s); (iv) any fees charged by securities rating services
for rating the Securities and the Subordinated Debentures; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required reviews by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities and the issuance of the
Guarantees and the Subordinated Debentures; (vi) the cost of preparing the
Securities and the Subordinated Debentures; (vii) the fees and expenses of any
Trustee, Debenture Trustee and Guarantee Trustee, and any agent of any trustee
and the fees and disbursements of counsel for any trustee in connection with any
Trust Agreement, Indenture, Guarantee and the Securities; (viii) the cost of
qualifying the Designated Securities with The Depository Trust Company; (ix) any
fees and expenses in connection with listing the Designated Securities and the
Designated Subordinated Debentures and the cost of registering the Securities
under Section 12 of the Exchange Act; and (x) all other costs and expenses
incident to the performance of its obligations hereunder and under any
Over-allotment Options which are not otherwise specifically provided for in this
Section . It is understood, however, that, except as provided in this Section ,
and Sections 8 and 11 hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
<PAGE> 10
10
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
such Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Trust and the Company have
elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 A.M., Washington, D.C.
time, on the first New York Business Day following the date of such
Pricing Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated each Time of Delivery
for such Designated Securities, with respect to the incorporation of
the Company and the formation of the Designated Trust, the validity of
the Designated Securities, the Designated Subordinated Debentures, the
Designated Guarantee, the Registration Statement, the Prospectus as
amended or supplemented, as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Special counsel for the Company, shall have furnished to
the Representatives its written opinions, dated the Time of Delivery
for such Designated Securities in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Tennessee;
(ii) The Company has been duly registered as a bank
holding company under the BHC Act;
(iii) The Pricing Agreement with respect to the
Designated Securities has been duly authorized, executed and
delivered by the Company;
(iv) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Company
under the Federal laws of the United States and the laws of
the State of New York for the issuance, sale and delivery of
the Securities by the Company to the Underwriters have been
obtained or made;
(v) The statements set forth (i) in the Prospectus
under the captions "Description of Junior Subordinated
Debentures", "Description of Preferred Securities",
"Description of Guarantees" and "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated
Debentures and the Guarantees", and (ii) in the Prospectus as
amended or supplemented under the captions "Certain Terms of
Series A QUIPS Capital Securities", "Certain Terms of Series A
Subordinated Debentures" and "Certain Terms of Series A
Guarantee", insofar as they purport to constitute summaries of
certain terms of the Designated Securities and the Company
Agreements, in each case constitute accurate summaries of the
Company Agreements and of the terms of such securities, as set
forth in the Company Agreements, in all material respects;
<PAGE> 11
11
(vi) The Designated Subordinated Debentures have been
duly authorized by the Company and, when executed,
authenticated, issued and delivered in the manner provided in
the Indenture, will constitute valid and binding obligations
of the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and to general equitable
principles;
(vii) The Indenture, the Designated Guarantee and the
Trust Agreement for the Designated Trust have each been duly
authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the
Debenture Trustee (in the case of the Indenture), by the
Guarantee Trustee (in the case of the Guarantee) and by the
Trustees (in the case of the Trust Agreement) constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws relating to or affecting creditors' rights
generally, to general equitable principles; and the Indenture,
the Designated Guarantee and the Designated Trust Agreement
have been duly qualified under the Trust Indenture Act;
(viii) The Registration Statement and the Prospectus as
amended or supplemented, and any further amendments and
supplements thereto made by the Designated Trust or the
Company prior to such Time of Delivery appeared on their face
to be appropriately responsive in all material respects with
the requirements of the Trust Indenture Act and the rules and
regulations thereunder; and
(ix) The Designated Trust is not an "investment company"
or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as
amended.
In rendering such opinion, special counsel may rely as to all
matters governed by Tennessee law upon the in-house counsel's opinion referred
to below.
In-house counsel of the Designated Trust and the Company shall
have furnished to the Representatives a written opinion, dated the Time of
Delivery for such Designated Securities in form and substance satisfactory to
the Representative, to the effect that:
(x) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Tennessee, with full power and corporate
authority to own, lease and operate its properties and conduct
its business as described in the Prospectus as amended or
supplemented;
(xi) The execution, delivery and performance by the
Company of this Agreement and the Company Agreements and the
consummation by the Company and the Designated Trust of the
transactions herein and therein contemplated will not result
in any violation of the provisions of the Company's Restated
Charter or By-Laws, each as amended, or conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company is subject, other than such
conflicts, breaches, violations or defaults which individually
or on a cumulative basis would not have a material adverse
effect on the financial condition, operating results or
prospects of the Company and its subsidiaries taken as a
whole; nor will such actions by the Company result in any
violation of any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or its
<PAGE> 12
12
properties; provided that for purposes of this opinion such
counsel need not express any opinion with respect to State
securities laws, antifraud laws, fraudulent transfer laws or
antitrust laws;
(xii) All consents, approvals, authorizations, orders,
registrations or qualifications with any Tennessee
governmental agency or body required for the issuance and sale
of the Designated Securities being delivered at such Time of
Delivery or the issuance of the Designated Guarantee and
Designated Subordinated Debentures or the consummation by the
Designated Trust or the Company of the transactions
contemplated by this agreement have been obtained, except such
as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the
Underwriters or the issuance of the Designated Guarantee and
Designated Subordinated Debentures by the Company;
(xiii) The Registration Statement and the Prospectus as
amended or supplemented, and any further amendments and
supplements thereto made by the Designated Trust or the
Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
and statistical data therein and the Form T-1 Statements of
Eligibility and Qualification of the Trustees, as to which
such counsel need express no opinion), appeared on their face
to be appropriately responsive in all material respects with
the requirements of the Act and the rules and regulations
thereunder; although they have not independently verified and
do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, such counsel has no
reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Designated Trust or the Company prior to such Time of
Delivery (other than the financial statements and related
schedules and other financial and statistical data therein and
the Form T-1 Statements of Eligibility and Qualification of
the Trustees, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Designated Trust or the Company prior to such Time
of Delivery (other than the financial statements and related
schedules and other financial and statistical data therein and
the Form T-1 Statements of Eligibility and Qualification of
the Trustees, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of such Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Designated Trust or the
Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial
and statistical data therein and the Form T-1 Statements of
Eligibility and Qualification of the Trustees, as to which
such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
such counsel does not know of any contracts or other documents
of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
<PAGE> 13
13
(d) Special Delaware Counsel to the Designated Trust and the
Company satisfactory to the Representatives, shall have furnished to
you, the Company and the Designated Trust their written opinion, dated
the respective Time of Delivery, in form and substance satisfactory to
you, to the effect that
(i) The Designated Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, and all filings required
under the laws of the State of Delaware with respect to the
creation and valid existence of the Designated Trust as a
business trust have been made;
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to
own property and conduct its business, all as described in the
Prospectus;
(iii) The Trust Agreement constitutes a valid and legally
binding obligation of the Company and the Trustees,
enforceable against the Company and the Trustees, in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles;
(iv) Under the Delaware Business Trust Act and the Trust
Agreement, the Designated Trust has the power and authority to
(a) execute and deliver, and to perform its obligations under
this Agreement and the Pricing Agreement and (b) issue and
perform its obligations under the Designated Securities and
the Common Securities of the Designated Trust;
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Designated Trust
of this Agreement and the Pricing Agreement, and the
performance by the Designated Trust of its obligations
thereunder and thereunder, have been duly authorized by all
necessary action on the part of the Designated Trust;
(vi) The Designated Securities have been duly authorized
by the Trust Agreement and are duly and validly issued and,
subject to the qualifications set forth herein, fully paid and
non-assessable beneficial interests in the Designated Trust
and are entitled to the benefits provided by the Trust
Agreement; the holders of the Designated Securities (the
"Securityholders"), as beneficial owners of the Designated
Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the
State of Delaware; provided that such counsel may note that
the Securityholders may be obligated, pursuant to the Trust
Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Securities Certificates and the
issuance of replacement Securities Certificates and (b)
provide security and indemnity in connection with requests of
or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and remedies under the Trust
Agreement;
(vii) The Common Securities of the Designated Trust have
been duly authorized by the Trust Agreement and are validly
issued and represent beneficial interests in the Designated
Trust;
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Designated Securities and the
Common Securities of the Designated Trust is not subject to
preemptive rights;
<PAGE> 14
14
(ix) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities of the
Designated Trust, the execution, delivery and performance by
the Designated Trust of this Agreement and the Pricing
Agreement, the consummation by the Designated Trust of the
transactions contemplated thereby and compliance by the
Designated Trust with its obligations thereunder will not
violate (a) any of the provisions of the Certificate of Trust
of the Designated Trust or the Trust Agreement, or (b) any
applicable Delaware law or administrative regulation;
(x) Assuming that the Designated Trust derives no
income from or connected with services provided within the
State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by
the Designated Trust solely in connection with the issuance
and sale of the Designated Securities and the Common
Securities of the Designated Trust. (In rendering the opinion
expressed in this paragraph (x), such counsel need express no
opinion concerning the securities laws of the State of
Delaware.); and
(xi) Assuming that the Designated Trust derives no
income from or connected with services provided within the
State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, the Securityholders (other
than those holders of the Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a
result of their participation in the Designated Trust, and the
Designated Trust will not be liable for any income tax imposed
by the State of Delaware.
(e) Tax counsel for the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to you their
written opinion, dated the respective Time of Delivery, in form and
substance satisfactory to you, to the effect that such firm confirms
its opinion set forth in the Prospectus under the captions "Certain
Federal Income Tax Consequences", "Risk Factors-Option to Defer
Interest Payment; Tax Consequences; Market Price Consequence", and
"Risk Factors-Possible Tax Law Changes Affecting Series A QUIPS";
(f) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to the Designated Securities (if so provided in the
Pricing Agreement) and at each Time of Delivery for such Designated
Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter, dated the
effective date of the Registration Statement or the date of the most
recent report filed with the Commission containing financial statements
and incorporated by reference in the Registration Statement, if the
date of such report is later than such effective date, and a letter
dated such Time of Delivery, respectively, to the effect set forth in
Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives;
(g) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
incorporated by reference in the Prospectus any (i) loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set fort or contemplated in the Prospectus, and (ii) since the
<PAGE> 15
15
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock (other than
relating to issuances pursuant to stock benefit plans and dividend
reinvestment plans and acquisitions of capital stock pursuant to
announced share repurchase programs) or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving
a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in
any such case described in Clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Designated Security on the terms and in the manner contemplated in
the Prospectus.
(h) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(i) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the Nasdaq National Market System;
(ii) a suspension or material limitation in trading in the Company's
securities or the Nasdaq National Market System; (iii) a general
moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus;
(j) If so provided in the Pricing Agreement, the Designated
Securities at each Time of Delivery shall have been duly approved for
listing subject to notice of issuance on the Nasdaq National Market
System;
(k) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of the Pricing
Agreement for such Designated Securities; and
(l) The Designated Trust and the Company shall have furnished
or caused to be furnished to the Representatives at each Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Designated
Trust and the Company herein at and as of such Time of Delivery, as to
the performance by the Designated Trust and the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (h) of
this Section and as to such other matters as the Representatives may
reasonably request (in each case to the best of such officer's
knowledge after reasonable investigation).
8. (a) The Designated Trust and the Company will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based
<PAGE> 16
16
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company and the Designated Trust shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company or the Designated
Trust by any Underwriter, expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Designated Trust and the Company against any losses, claims, damages or
liabilities to which the Designated Trust or the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company or the Designated Trust by such
Underwriter, expressly for use therein; and will reimburse the Company and the
Designated Trust for any legal or other expenses reasonably incurred by the
Company or the Designated Trust in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omissions so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses,
<PAGE> 17
17
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Designated Trust and the Company on the one hand and the Underwriters on the
other hand from the offering of the Designated Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Designated Trust on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Designated Trust on the one
hand and the Underwriters on the other hand shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Designated Trust bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Designated Trust on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Designated Trust and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligation of the Company and the Designated Trust
under this Section 8 shall be in addition to any liability which the Company and
the Designated Trust may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company or the Designated Trust within the meaning of the Act.
9. If, at the Time of Delivery, any one or more of the Underwriters
shall fail or refuse to purchase Designated Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate amount of
Designated Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Designated Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the amount of
Designated Securities set forth opposite their respective names in the Pricing
Agreement bears to the aggregate amount of Designated Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Representatives may specify, to purchase the Designated
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the amount
of Designated Securities that any Underwriter has agreed to purchase pursuant to
this Agreement be
<PAGE> 18
18
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
amount of Designated Securities without the written consent of such Underwriter.
If, at the Time of Delivery, any Underwriter or Underwriters shall fail or
refuse to purchase Designated Securities and the aggregate amount of Designated
Securities with respect to which such default occurs is more than one-tenth of
the aggregate amount of Designated Securities to be purchased on such date, and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Designated Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust or the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust or the Company, or any officer or director
or controlling person of the Designated Trust or the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Company shall then be under any liability to any Underwriter with respect to the
Firm Designated Securities or Optional Designated Securities with respect to
which such Pricing Agreement shall have been terminated except as provided in
Sections 6 and 8 hereof; but, if for any other reason, Designated Securities are
not delivered by or on behalf of the Designated Trust or the Company as provided
herein, the Company will reimburse the Underwriters through the Representatives
for all out-of-pocket expenses approved in writing by the Representatives,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of such
Designated Securities, but the Designated Trust or the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Designated Trust or the Company, respectively, set forth in the Registration
Statement, Attention: Teresa A. Fehrman, Treasurer, and Harry A. Johnson, III,
Executive Vice President and General Counsel; provided,
<PAGE> 19
19
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Designated Trust and the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. Each Pricing Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, each Designated Trust, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of each
Designated Trust, the Company and each person who controls any Designated Trust
or the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of any such Pricing Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Each Pricing Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
<PAGE> 20
ANNEX I
Pricing Agreement
[Name(s) of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Date: ______________
Ladies and Gentlemen:
First Tennessee Capital ___, a statutory business trust formed under
the laws of the State of Delaware (the "Designated Trust") and First Tennessee
National Corporation, a Tennessee corporation (the "Company"), propose, subject
to the terms and conditions stated herein and in the Standard Provisions, dated
December , 1996 attached hereto (the "Standard Provisions"), to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated Securities"
consisting of Firm Designated Securities and any Optional Designated Securities
the Underwriters may elect to purchase). The principal asset of the Trust
consists of debt securities of the Company (the "Subordinated Debentures"), as
specified in Schedule II to this Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in this Agreement with respect
to such Designated Securities (the "Guarantee"). Each of the provisions of the
Standard Provisions is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Standard Provisions shall be
deemed to be a representation or warranty as of the date of the Standard
Provisions in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Standard Provisions so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Standard Provisions are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Standard Provisions and the address of
the Representatives referred to in such Section 12 are set forth in Schedule II
hereto.
An amendment to the Initial Registration Statement or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Standard Provisions incorporated herein by reference, (a) the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto and, (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Designated Securities, as provided below, the Designated Trust agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Designated Trust at the
purchase price to the Underwriters set forth in Schedule II hereto that portion
of the number of Optional Designated Securities as to which such election shall
have been exercised.
<PAGE> 21
2
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such election
to purchase Optional Designated Securities may be exercised by written notice
from the Representatives to the Designated Trust and the Company given within a
period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Designated Trust otherwise
agree in writing, no earlier than two or later than ten business days after the
date of such notice.
<PAGE> 22
3
If the foregoing is in accordance with your understanding, please sign
and return to us [ ] counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Standard Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Designated Trust and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Designated Trust and the Company for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
THE FIRST TENNESSEE NATIONAL
CORPORATION
By:
----------------------------------
Name:
Title:
FIRST TENNESSEE CAPITAL ___
By: The First Tennessee National
Corporation, as Depositor
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
As Representatives of the Underwriters
Named in Schedule I hereto
By:
-----------------------------------
On behalf of each of the Underwriters
<PAGE> 23
1
SCHEDULE I
MAXIMUM NUMBER
OF OPTIONAL
NUMBER OF DESIGNATED
FIRM DESIGNATED SECURITIES WHICH
SECURITIES SECURITIES MAY BE
UNDERWRITER TO BE PURCHASED PURCHASED
----------- --------------- -----------------
<PAGE> 24
2
SCHEDULE II
DESIGNATED TRUST:
First Tennessee Capital__
TITLE OF DESIGNATED SECURITIES:
AGGREGATE PRINCIPAL AMOUNT:
Aggregate principal amount of Designated
Securities to be sold: $_________________
PRICE TO PUBLIC:
100% of the principal amount of the Designated Securities
PURCHASE PRICE BY UNDERWRITERS:
____________ % of the principal amount of the Designated Securities
UNDERWRITERS' COMPENSATION:
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Designated
Securities will be used by the Designated Trust to purchase the
Subordinated Debentures of the Company, the Company hereby agrees to
pay at each Time of Delivery to [Name of Lead Manager], for the
accounts of the several Underwriters, an amount equal to $__________
per preferred security for the Designated Securities to be delivered at
each Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) Funds
ACCOUNTANTS' LETTER TO BE DELIVERED ON DATE OF PRICING AGREEMENT:
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated as of ________________
__,____ between the Company and the Trustees named therein
INDENTURE:
Indenture dated as of ___________ __, 199_, between the Company and
[Debenture Trustee], as Debenture Trustee.
GUARANTEE:
Guarantee Agreement dated as of __________ __, _____, between Company
and [Guarantee Trustee], as Guarantee Trustee
<PAGE> 25
3
MATURITY:
---------------, -----
INTEREST RATE:
--------%
INTEREST PAYMENT DATES:
EXTENSION PERIOD:
REDEMPTION PROVISIONS:
[The redemption provisions set forth in Section 402 of the Trust
Agreement shall apply to the Designated Securities.]
SINKING FUND PROVISIONS:
[No sinking fund provisions.]
TIME OF DELIVERY:
10:00 a.m., New York City time
-------------- --, ------
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
<PAGE> 26
1
ANNEX II
Pursuant to Section 7(d) of the Standard Provisions, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Designated Trust and the Company and its subsidiaries
within the meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been separately furnished to the representatives of the Underwriters
(the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to
in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing
came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim
<PAGE> 27
2
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus and/or included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than relating to issuances pursuant
to stock benefit plans and dividend reinvestment plans and acquisitions
of capital stock pursuant to announced share repurchase programs) or
any increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representatives, or any
<PAGE> 28
3
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for increases or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in
the Prospectus (excluding documents incorporated by reference), or in
Part II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Standard Provisions as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF FIRST TENNESSEE NATIONAL CORPORATION]
December 17, 1996
First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
Dear Sirs:
As Executive Vice President and General Counsel of First
Tennessee National Corporation, a Tennessee corporation (the "Company"), I am
familiar with the registration statement on Form S-3 (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), by
the Company, and First Tennessee Capital I, First Tennessee Capital II, First
Tennessee Capital III and First Tennessee Capital IV, each a Delaware business
trust (the "Trusts"), relating to a proposed shelf registration of (i)
preferred securities representing beneficial ownership interests in and to be
issued by such Trusts (the "Preferred Securities"), (ii) junior subordinated
deferrable interest debentures (the "Debentures") to be issued by the Company
and (iii) unconditional and irrevocable guarantees (the "Guarantees" and each a
"Guarantee") that may be issued by the Company of the obligations of the Trusts
under the Preferred Securities (collectively, the "Securities"), to be offered
from time to time at prices and on terms to be determined at the time of sale,
all relating to Preferred Securities with an aggregate liquidation amount not
to exceed $300,000,000.
I have examined, or caused those acting under my supervision
to have examined, the originals or copies, certified or otherwise identified to
my satisfaction, of the restated charter, as amended, of the Company (the
"Charter"), the bylaws, as amended, of the Company, Minutes of the December 17,
1996 Meeting of the Board of Directors of the Company (the "Minutes"), the
Registration Statement, the form of Junior Subordinated Indenture (the
"Indenture") to be entered into between the Company and The Bank of New York,
as Debenture Trustee (the "Debenture Trustee"), as filed as an exhibit to the
Registration Statement, pursuant to which the Debentures are to be issued, the
forms of Guarantee Agreement (the "Guarantee Agreements" and each a Guarantee
Agreement") to be executed by the Company and The
<PAGE> 2
Bank of New York, as Guarantee Trustee (the "Guarantee Trustee") as filed as an
exhibit to the Registration Statement, and such other corporate records,
certificates and other documents, and such questions of law, as I have
considered necessary or appropriate for purposes of this opinion. In rendering
such opinion, I have presumed the genuineness of all documents examined and the
accuracy of all statements of fact contained therein.
Upon the basis of such examination and subject to the
limitations contained herein, it is my opinion that:
1. The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Tennessee.
2. With respect to the Debentures to be issued under the Indenture,
when (i) such Indenture has been duly authorized and validly executed and
delivered by the Company by its duly authorized officers (the "Authorized
Officers) or any authorized committee of the Board of Directors of the Company
(the "Board") pursuant to the Minutes and by the Debenture Trustee, (ii) the
Board or the Authorized Officers or any authorized committee of the Board,
acting pursuant to the Minutes, has taken all necessary corporate action to
approve the issuance and specific terms of such Debentures, and (iii) such
Debentures have been duly executed, authenticated, issued and delivered by the
Authorized Officers pursuant to the Minutes and in accordance with the
provisions of such Indenture upon payment of the consideration therefor as
contemplated by the Registration Statement, such Debentures will constitute
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
3. With respect to the Guarantee to be issued under each Guarantee
Agreement, when (i) such Guarantee Agreement has been duly authorized and
validly executed and delivered by the Company by its Authorized Officers
pursuant to the Minutes and by the Guarantee Trustee, (ii) the Board or the
Authorized Officers or any authorized committee of the Board, acting pursuant
to the Minutes, has taken all necessary corporate action to approve the
issuance and specific terms of such Guarantee and (iii) such Guarantee has been
duly executed, issued and delivered by the Authorized Officers pursuant to the
Minutes and in accordance with the provisions of such Guarantee Agreement,
such Guarantee will constitute a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
<PAGE> 3
general applicability relating to or affecting creditors' rights and to general
equity principles.
It is my understanding that the Company and the Trusts intend
to issue Securities from time to time on a delayed or continuous basis.
Accordingly, this opinion is limited to the laws, including the applicable
rules and regulations, as in effect on the date hereof. I understand that
prior to issuing any Securities, the Company and the Trusts will advise me in
writing of the terms and will afford me an opportunity to review the operative
documents pursuant to which such Securities will be issued, and I will file
such supplement or amendment to this opinion, if any, as I may reasonably
consider necessary or appropriate by reason of the terms of such Securities.
The foregoing opinion is limited to the federal laws of the
United States and the laws of the State of Tennessee, and I am expressing no
opinion as to the effect of the laws of any other jurisdiction. With respect
to all matters of New York law, I have relied on the opinion, dated of even
date herewith, of Sullivan & Cromwell addressed to you, and my opinion is
subject to the same assumptions, qualifications and limitations with respect to
such matters as are contained in such opinion of Sullivan & Cromwell.
In rendering the foregoing opinion, I have relied to the
extent I deem such reliance appropriate as to certain matters on statements,
representations and other information obtained from public officials, officers
of the Company and other sources believed by me to be responsible.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to me in the prospectus and
any prospectus supplement that is a part of the Registration Statement. In
giving such consent, I do not thereby admit that I am in the category of
persons whose consent is required under Section 7 of the Act.
Very truly yours,
Harry A. Johnson, III
<PAGE> 1
EXHIBIT 5.2
[LETTERHEAD OF SULLIVAN & CROMWELL]
December 17, 1996
First Tennessee National Corporation,
165 Madison Avenue,
Memphis, Tennessee 38103
Dear Sirs:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), of (i) up to $300,000,000 aggregate liquidation amount
of preferred securities representing beneficial ownership interests (the
"Preferred Securities") in First Tennessee Capital I, First Tennessee Capital
II, First Tennessee Capital III and First Tennessee Capital IV (the "Trusts"),
(ii) up to $310,000,000 principal amount of junior subordinated deferrable
interest debentures (the "Debentures") to be issued by First Tennessee National
Corporation (the "Corporation") and (iii) unconditional and irrevocable
guarantees (the "Guarantees" and each a "Guarantee") of the obligations of the
Trusts under the Preferred Securities that may be issued by the Company, in
each case to be offered from time to time at
<PAGE> 2
First Tennessee National Corporation -2-
prices and on terms to be determined at the time of sale we, as your counsel,
have examined such corporate records, certificates and other documents, and
such questions of law, as we have considered necessary or appropriate for the
purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion, when the Registration Statement has become effective under the Act,
the Indenture relating to the Debentures has been duly authorized, executed and
delivered, the terms of the Debentures and of their issuance and sale have been
duly established in conformity with the Indenture so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, the Debentures have been duly executed and authenticated in
accordance with the Indenture and issued and sold as contemplated in the
Registration Statement, and the Guarantee has been duly authorized, executed
and delivered by the Guarantor, each of the Debentures and the Guarantees will
constitute valid and legally binding obligations of the Corporation,
enforceable against the Corporation in accordance with their terms, subject, as
to enforcement, to
<PAGE> 3
First Tennessee National Corporation -3-
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principals.
The foregoing is limited to the Federal laws of the United
States and the laws of the State of New York, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction. With respect to all
matters of Tennessee law, we have relied upon the opinion, dated of even date
herewith, of Harry A. Johnson, III, Executive Vice President and General
Counsel of the Company, and our opinion is subject to the same assumptions,
qualifications and limitations with respect to such matters as are contained in
such opinion of Mr. Johnson.
Also, we have relied as to certain matters on information
obtained from public officials, officers of the Corporation and other sources
believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to us under the headings
"Validity of Securities"
<PAGE> 4
First Tennessee National Corporation -4-
in the Prospectus. In giving such consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the
Act.
Very truly yours,
SULLIVAN & CROMWELL
<PAGE> 1
EXHIBIT 5.3
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
December 17, 1996
First Tennessee Capital I
c/o First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
Re: First Tennessee Capital I
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Tennessee National
Corporation, a Tennessee corporation (the "Company") and first Tennessee
Capital I, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of December 6,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on December 6, 1996;
(b) The Trust Agreement of the Trust, dated as of December 6, 1996,
among the Company, as depositor, and Elbert L. Thomas, Jr., Teresa A. Fehrman
and The Bank of New York (Delaware), as trustees;
<PAGE> 2
First Tennessee Capital I
December 17, 1966
Page 2
(c) The registration statement (the "Initial Registration Statement")
on Form S-3 (Registration No. 333-17457), filed by the Company, the Trust and
the other registrants listed therein with the Securities and Exchange
Commission (the "SEC") on December 9, 1996, as amended by amendment No. 1 to
the Initial Registration Statement, filed by the Company, the Trust and the
other registrants listed therein with the SEC on December 16, 1996 ("Amendment
No. 1"), and by Amendment No. 2 to the Initial Registration Statement,
including a related preliminary prospectus, as supplemented by a preliminary
prospectus supplement (as supplemented, the "Prospectus"), relating to the
Preferred Securities of the Trust representing beneficial ownership interests
in the Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), to be filed by the Company, the Trust and the other registrants
listed therein with the SEC on or about December 17, 1996 ("Amendment No. 2")
(the Initial Registration Statement, as amended by Amendment No. 1 and by
Amendment No. 2, is hereinafter referred to as the "Registration Statement");
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as depositor, the trustees of the Trust named
therein, and the holders, from time to time, of beneficial ownership interests
in the Trust, attached as an exhibit to the Prospectus (the "Trust
Agreement"); and
(e) A Certificate of Good Standing for the Trust, dated December 17,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to
be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE> 3
First Tennessee Capital I
December 17, 1996
Page 3
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to
whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it,
in accordance with the Trust Agreement and the Registration Statement, and
(vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801, et seq.
2. When issued and sold, the Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
<PAGE> 4
First Tennessee Capital I
December 17, 1996
Page 4
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE> 1
EXHIBIT 5.4
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
December 17, 1996
First Tennessee Capital II
c/o First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
Re: First Tennessee Capital II
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Tennessee National
Corporation, a Tennessee corporation (the "Company") and First Tennessee
Capital II, a Delaware business trust (the "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of December 6, 1996
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on December 6, 1996;
(b) The Trust Agreement of the Trust, dated as of December 6, 1996,
among the Company, as depositor, and Elbert L. Thomas, Jr., Teresa A. Fehrman
and The Bank of New York (Delaware), as trustees;
<PAGE> 2
First Tennessee Capital II
December 17, 1996
Page 2
(c) The registration statement (the "Initial Registration Statement")
on Form S-3 (Registration No. 333-17457), filed by the Company, the Trust and
the other registrants listed therein with the Securities and Exchange
Commission (the "SEC") on December 9, 1996, as amended by Amendment No. 1 to
the Initial Registration Statement, filed by the Company, the Trust and the
other registrants listed therein with the SEC on December 16, 1996 ("Amendment
No. 1"), and by Amendment No. 2 to the Initial Registration Statement,
including a related preliminary prospectus, as supplemented by a preliminary
prospectus supplement (as supplemented, the "Prospectus"), relating to the
Preferred Securities of the Trust representing beneficial ownership interests
in the Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), to be filed by the Company, the Trust and the other registrants
listed therein with the SEC on or about December 17, 1996 ("Amendment No. 2")
(the Initial Registration Statement, as amended by Amendment No. 1 and by
Amendment No. 2, is hereinafter referred to as the "Registration Statement");
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as depositor, the trustees of the Trust named
therein, and the holders, from time to time, of beneficial ownership interests
in the Trust, attached as an exhibit to the Prospectus (the "Trust Agreement");
and
(e) A Certificate of Good Standing for the Trust, dated December 17,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to
be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE> 3
First Tennessee Capital II
December 17, 1996
Page 3
For purposes of this opinion, we have assumed (i) that the Trust Agreement
constitutes the entire agreement among the parties thereto with respect to the
subject matter thereof, including with respect to the creation, operation and
termination of the Trust, and that the Trust Agreement and the Certificate are
in full force and effect and have not been amended, (ii) except to the extent
provided in paragraph 1 below, the due creation or due organization or due
formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv) that each
of the parties to the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under, such documents, (v)
the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the "Preferred Security
Holders") of a Preferred Securities Certificate for such Preferred Security and
the payment for the Preferred Security acquired by it, in accordance with the
Trust Agreement and the Registration Statement and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801, et seq.
2. When issued and sold, the Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
<PAGE> 4
First Tennessee Capital II
December 17, 1996
Page 4
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE> 1
EXHIBIT 5.5
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
December 17, 1996
First Tennessee Capital III
c/o First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
Re: First Tennessee Capital III
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Tennessee National
Corporation, a Tennessee corporation (the "Company") and First Tennessee Capital
III, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of December 6,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on December 6, 1996;
(b) The Trust Agreement of the Trust, dated as of December 6, 1996,
among the Company, as depositor, and Elbert L. Thomas, Jr., Teresa A. Fehrman
and The Bank of New York (Delaware), as trustees;
<PAGE> 2
First Tennessee Capital III
December 17, 1996
Page 2
(c) The registration statement (the "Initial Registration
Statement") on Form S-3 (Registration No. 333-17457), filed by the Company, the
Trust and the other registrants listed therein with the Securities and Exchange
Commission (the "SEC") on December 9, 1996, as amended by Amendment No. 1 to the
Initial Registration Statement, filed by the Company, the Trust and the other
registrants listed therein with the SEC on December 16, 1996 ("Amendment No.
1"), and by Amendment No. 2 to the Initial Registration Statement, including a
related preliminary prospectus, as supplemented by a preliminary prospectus
supplement (as supplemented, the "Prospectus"), relating to the Preferred
Securities of the Trust representing beneficial ownership interests in the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), to be filed by the Company, the Trust and the other registrants
listed therein with the SEC on or about December 17, 1996 ("Amendment No. 2")
(the Initial Registration Statement, as amended by Amendment No. 1 and by
Amendment No. 2, is hereinafter referred to as the "Registration Statement");
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as depositor, the trustees of the Trust named
therein, and the holders, from time to time, of beneficial ownership interests
in the Trust, attached as an exhibit to the Prospectus (the "Trust Agreement");
and
(e) A Certificate of Good Standing for the Trust, dated December 17,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to
be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all document submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE> 3
First Tennessee Capital III
December 17, 1996
Page 3
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to
whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it,
in accordance with the Trust Agreement and the Registration Statement, and
(vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801, et. seq.
2. When issued and sold, the Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
<PAGE> 4
First Tennessee Capital III
December 17, 1996
Page 4
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon, by, any other Person for any purpose.
Very truly Yours,
RICHARDS, LAYTON & FINGER
<PAGE> 1
EXHIBIT 5.6
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
December 17, 1996
First Tennessee Capital IV
c/o First Tennessee National Corporation
165 Madison Avenue
Memphis, Tennessee 38103
Re: First Tennessee Capital IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for First Tennessee National
Corporation, a Tennessee corporation (the "Company") and First Tennessee Capital
IV, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of December 6,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on December 6, 1996;
(b) The Trust Agreement of the Trust, dated as of December 6, 1996,
among the Company, as depositor, and Elbert L. Thomas, Jr., Teresa A. Fehrman
and The Bank of New York (Delaware), as trustees;
<PAGE> 2
First Tennessee Capital IV
December 17, 1996
Page 2
(c) The registration statement (the "Initial Registration Statement")
on Form S-3 (Registration No. 333-17457), filed by the Company, the Trust and
the other registrants listed therein with the Securities and Exchange
Commission (the "SEC") on December 9, 1996, as amended by Amendment No. 1 to
the Initial Registration Statement, filed by the Company, the Trust and the
other registrants listed therein with the SEC on December 16, 1996 ("Amendment
No. 1"), and by Amendment No. 2 to the Initial Registration Statement,
including a related preliminary prospectus, as supplemented by a preliminary
prospectus supplement (as supplemented, the "Prospectus"), relating to the
Preferred Securities of the Trust representing beneficial ownership interests
in the Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), to be filed by the Company, the Trust and the other registrants
listed therein with the SEC on or about December 17, 1996 ("Amendment No. 2")
(the Initial Registration Statement, as amended by Amendment No. 1 and by
Amendment No. 2, is hereinafter referred to as the "Registration Statement");
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as depositor, the trustees of the Trust named
therein, and the holders, from time to time, of beneficial ownership interests
in the Trust, attached as an exhibit to the Prospectus (the "Trust Agreement");
and
(e) A Certificate of Good Standing for the Trust, dated December 17,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to
be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
<PAGE> 3
First Tennessee Capital IV
December 17, 1996
Page 3
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to
whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it,
in accordance with the Trust Agreement and the Registration Statement, and
(vii) that the Preferred Securities are issued and sold to the Preferred
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder
which are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
Section 3801, et. seq.
2. When issued and sold, the Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
<PAGE> 4
First Tennessee Capital IV
December 17, 1996
Page 4
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of Securities" in the Prospectus. In giving the
foregoing consents, we do not thereby admit that we come within the category of
Persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE> 1
EXHIBIT 8
[LETTERHEAD OF SULLIVAN & CROMWELL]
December 16, 1996
First Tennessee National Corporation,
165 Madison Avenue,
Memphis, Tennessee 38103
Ladies and Gentlemen:
As special tax counsel to First Tennessee Capital I, First Tennessee
Capital II, First Tennessee Capital III, First Tennessee Capital IV (each, a
"Trust"), and First Tennessee National Corporation in connection with the
issuance of $300,000,000 aggregate liquidation amount of Preferred Securities
of the Trusts, and assuming (i) the holder of the Common Securities of each
Trust will have "substantial assets" (other than the Common Securities) within
the meaning of Treasury Regulations Section 301.7701-2(d)(2) and (ii) the
operative documents for the Preferred Securities described in the Prospectus
and the Prospectus Supplement to which this opinion is filed as an exhibit (the
"Registration Statement") will be performed in accordance with the terms
described therein, we hereby confirm to you our opinion as set forth under the
heading "Certain Federal Income Tax Consequences" in the Registration
Statement, subject to the limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to us under the heading "Certain
Federal Income Tax Consequences" in the Registration Statement. By giving the
foregoing consent, we do not admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
SULLIVAN & CROMWELL
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement, Amendment NO. 2 to Form S-3 of our
report dated January 16, 1996, included in First Tennessee National
Corporation's 1995 Annual Report on Form 10-K, and to all references to our firm
in this registration statement.
ARTHUR ANDERSEN LLP
Memphis, Tennessee,
December 17, 1996.
