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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) September 15, 1999
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NBC Capital Corporation
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(Exact Name of Registrant as Specified in Charter)
Mississippi 0-12885 64-0694755
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
NBC Plaza, Starkville, Mississippi 39759
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (662) 343-1341
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Not applicable
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(Former Name or Former Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
Pursuant to an Agreement and Plan of Merger dated February 3, 1999, FFBS
Bancorp, Inc. was merged with and into the Registrant, NBC Capital Corporation,
effective immediately following the close of business on August 31, 1999. The
Merger Agreement was approved by the shareholders of FFBS at a special meeting
of shareholders held on June 14, 1999 and by the shareholders of NBC at the
annual meeting of shareholders held on June 15, 1999. On June 28, 1999, the
Office of the Comptroller of the Currency approved the Merger under Section
5(d)(3) of the Federal Deposit Insurance Act, as amended. The Merger has been
accounted for on a pooling-of-interests basis.
At June 30, 1999, NBC had total consolidated assets of $796 million and
FFBS had total consolidated assets of $158 million.
Prior to consummation of the merger, FFBS was a Delaware corporation and a
registered savings and loan holding company under the Savings and Loan Holding
Company Act. At June 30, 1999, FFBS had one wholly-owned subsidiary: First
Federal Bank for Savings, a federally chartered stock savings bank, which was
engaged principally in the business of attracting retail deposits from the
general public and investing those deposits, together with funds generated from
operations, primarily in one-to-four family loans, commercial business loans,
construction loans and consumer loans.
At June 30, 1999, NBC had one national bank subsidiary, National Bank of
Commerce, that provides retail and commercial banking services, and a non-bank
subsidiary, First National Finance Corporation, a Mississippi corporation that
provides additional financial services not otherwise provided by National Bank
of Commerce.
Immediately after consummation of the Merger, FFBS was merged into NBC and
First Federal Bank for Savings was merged into National Bank of Commerce; NBC
and National Bank of Commerce are the surviving institutions. National Bank of
Commerce will conduct the operations previously conducted by First Federal Bank
for Savings.
NBC is not aware of any material relationships among FFBS or its thrift
subsidiary, on the one hand, and NBC or any of NBC's officials, any director or
officer of NBC or any associate of any such director or officer, on the other
hand. Upon consummation of the Merger, two members of the board of directors of
FFBS were elected to the board of directors of NBC.
Upon consummation of the Merger, FFBS shareholders received .8758 shares of
NBC common stock for each share of FFBS common stock formerly held by them.
This exchange ratio was determined in accordance with the Merger Agreement by
reference to the average market price of the NBC common stock for the twenty
trading days prior to the consummation of the merger on August 31, 1999.
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The shares of NBC common stock issued pursuant to the Merger Agreement were
registered by means of a registration statement on Form S-4 (Registration No.
333-75293) filed by NBC with the Securities and Exchange Commission on March 30,
1999, and as amended by Form S-4A filed with the Securities and Exchange
Commission on April 28, 1999 (collectively, the "Registration Statement"). The
Registration Statement was declared effective on April 30, 1999. The
Registration Statement, which includes the form of prospectus/proxy statement
used in connection with NBC's annual meeting of shareholders held on June 15,
1999 and FFBS's special meeting of shareholders held on June 14, 1999, is
incorporated herein by reference.
ITEM 5. OTHER EVENTS
NBC files this Report on Form 8-K also for the purpose of updating the
description of its securities registered under the Securities Exchange Act of
1934, as amended (Commission File No. 0-12885), which was originally set forth
in NBC's Registration Statement on Form 8-B dated October 11, 1984, to read in
its entirety as follows:
Description of NBC Common Stock
The authorized capital stock of NBC consists of 10,000,000 shares of common
stock, $1.00 par value, of which 7,061,268 shares were outstanding on August 31,
1999 and 29,445 shares have been reserved for issuance pursuant to an employee
stock option plan formerly maintained by FFBS. NBC's common stock is traded in
the over-the-counter market. Current quotes of the market price of NBC common
stock are available from the firms of Sterne, Agee, and Leach, Inc. and J.C.
Bradford & Co., which make a market in NBC's common stock. The following
description of NBC's capital stock is qualified in its entirety by reference to
NBC's articles of incorporation and by-laws, each of which is incorporated by
reference as an exhibit to this Report, and to the applicable provisions of the
Mississippi Business Corporation Act ("MBCA").
Voting Rights; Cumulative Voting. Holders of NBC common stock are entitled
to cumulative voting rights in the election of NBC directors. Cumulative voting
entitles an NBC shareholder to give one particular candidate a number of votes
equal to the number of directors to be elected, multiplied by the number of
shares held by that shareholder, or to distribute the shareholder's total votes,
computed on the same principle, among as many candidates as the shareholder
chooses. NBC shareholders are entitled to one vote per share on all other
matters to be voted on by shareholders.
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Preemptive Rights. NBC shareholders have full preemptive rights to
purchase or subscribe for shares of any class of stock authorized by the board
of directors for valid corporate purposes except for:
(i) stock issued otherwise than for cash;
(ii) stock issued as compensation to directors, officers, agents or
employees of NBC, its subsidiaries or affiliates; and
(iii) stock issued to satisfy conversion or option rights created to
provide compensation to directors, officers, agents or employees of
NBC, its subsidiaries or affiliates.
Dividend Rights. NBC shareholders are entitled to receive ratably
dividends, if any, as may be declared by NBC's board of directors, in its
discretion, out of funds legally available. NBC's ability to declare and pay
dividends is restricted by federal statutes and regulations affecting bank
holding companies. Dividends paid by NBC are substantially provided from
dividends from National Bank of Commerce. There are certain limitations under
federal law on the payment of dividends by national banks. Under federal law,
the directors of a national bank, after making proper deduction for all expenses
and other deductions required by the Comptroller of the Currency (the
"Comptroller"), may credit net profits to the bank's undivided profits account,
and may declare a dividend from that account of so much of the net profits as
they judge expedient.
The prior approval of the Comptroller is required, however, if the total of
all dividends declared by a national bank in any calendar year will exceed the
sum of such bank's net profits for that year and its retained net profits for
the preceding two calendar years, less any required transfers to surplus.
Federal law also prohibits national banks from paying dividends which would be
greater than the bank's undivided profits after deducting statutory bad debt in
excess of the bank's allowance for loan losses. Finally, the Federal Deposit
Insurance Corporation Improvement Act generally prohibits a depository
institution from making any capital distribution to its holding company if the
depository institution would thereafter be "undercapitalized."
In addition, both NBC and National Bank of Commerce are subject to various
regulatory policies and requirements relating to the payment of dividends,
including requirements to maintain adequate capital above regulatory minimums.
The appropriate federal regulatory authority is authorized to determine under
certain circumstances relating to the financial condition of a national bank or
bank holding company that the payment of dividends would be an unsafe or unsound
practice and to prohibit payment thereof. The Comptroller and the Federal
Reserve Board have each indicated that banking organizations should generally
pay dividends only out of current operating earnings. National Bank of
Commerce's ability to pay dividends is also limited by prudence, statutory and
regulatory guidelines, and a variety of other factors.
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Liquidation Rights. In the event of liquidation, dissolution, or winding
up of NBC's business, shareholders are entitled to share ratably in all assets
remaining after payment of liabilities.
Shareholder Action. Any action required or permitted to be taken at any
annual or special meeting of shareholders may be taken only upon the vote of the
shareholders at the annual or special meeting, which has been duly called and
noticed as provided in NBC's by-laws, and may not be taken by a written consent
of the shareholders as otherwise provided in the MBCA. A majority of the
outstanding common stock constitutes a quorum for the transaction of business by
NBC's shareholders. When a quorum is present, other than the supermajority vote
provisions set forth below, the affirmative vote of a majority of NBC's
outstanding common stock present at the meeting decides the question brought
before such meeting.
Supermajority Voting Provisions. NBC's articles of incorporation contain
certain provisions designed to provide safeguards for shareholders by requiring
the affirmative vote of at least seventy-five percent (75%) of NBC's outstanding
common stock. This supermajority vote is required to:
(i) amend the provision in the articles of incorporation that provides
for preemptive rights of NBC's shareholders in the issuance of NBC's
capital stock;
(ii) authorize (a) a merger or consolidation of NBC with, or (b) a sale,
exchange, or lease of all or substantially all of NBC's assets to,
any person or entity (unless approval of such transaction described
in (a) or (b) is recommended by at least a majority of the entire
board of directors);
(iii) amend the provision of the articles of incorporation described in
the preceding section (ii); and
(iv) amend the provision of the articles of incorporation that
outlines the factors requiring consideration by the board of
directors in the event of a proposed tender offer or exchange offer
for NBC's common stock, any proposed merger or consolidation of NBC
or a subsidiary with or into another entity and any proposal to
purchase or otherwise acquire all or substantially all of NBC's or a
subsidiary's assets; and authorizes the board of directors to change
the maximum number of directors.
(v) amend the provision of the articles of incorporation that authorizes
the board of directors to change the maximum number of directors.
Fair Price Provisions. Mississippi has enacted the Shareholder Protection
Act (the "Act"), which imposes supermajority voting provisions on all forms of
corporate combinations, unless all shareholders receive a "fair price" in the
transaction. Although banks and bank holding companies are exempt from the
terms of the Act, a bank or a bank holding company may elect to opt in to the
protections provided under the Act.
In its articles of incorporation, NBC has elected to opt in to the
protections afforded under the Act. Accordingly, the affirmative vote of at
least seventy-five percent (75%) of NBC's outstanding common stock and the
affirmative vote of the holders of at least sixty-seven
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percent (67%) of NBC's outstanding common stock held by shareholders other than
a controlling party (as defined below) would be required for approval or
authorization of a merger, consolidation, reverse stock split, sale, exchange or
lease of all or substantially all of NBC's assets if such transaction involves
any shareholder who owns or controls twenty percent (20%) or more of NBC's
outstanding common stock at the time the transaction is proposed (the
"controlling party"); provided, however, that the supermajority vote
requirements described in this section on Fair Price Provisions do not apply to
any transaction in which the conditions specified in either of the following
subparagraphs (A) and (B) are met:
(A) any transaction approved by a majority of the continuing directors. A
continuing director is defined as a director who, while a member of the
board of directors, is not a controlling party or in any manner
affiliated or associated with or a representative of the controlling
party and was a member of the board of directors prior to the time that
the controlling party became a controlling party, and any person who
subsequently becomes a member of the board of directors, while such
person is a member of the board of directors, who is not a controlling
party or in any manner affiliated or associated with or a
representative of the controlling party if such person's nomination for
election or election to the board of directors is recommended or
approved by a majority of the continuing directors, as defined herein,
then in office; or
(B) All of the following conditions have been met:
The aggregate amount of (x) cash and (y) fair market value (as
determined by the continuing directors in good faith) as of the date of
the consummation of any transaction of consideration other than cash,
to be received per share by holders of common stock in such transaction
shall be at least equal to the highest amount determined under sub-
clauses (a), (b) and (c) below:
(a) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the controlling party for any share of common stock
acquired by it (1) within the three-year period immediately prior
to the first public announcement of the proposal of the
transaction (the "announcement date") or (2) in the transaction
in which it became a controlling party, whichever is higher;
(b) the fair market value (as determined by the continuing
directors in good faith) per share of common stock on the
announcement date or on the date on which the controlling party
became a controlling party, whichever is higher; and
(c) (if applicable) the price per share equal to the fair
market value (as determined by the continuing directors in good
faith) per share of common stock determined pursuant to
subparagraph (B)(b) above,
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multiplied by the ratio of (1) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the controlling party for any
shares of common stock acquired by it within the three year
period immediately prior to the announcement date to (2) the
total shareholder's equity per share of common stock (determined
in accordance with generally accepted accounting principles) on
the first day in such three-year period on which the controlling
party acquired any shares of common stock.
Directors
NBC's board of directors consists of a maximum of twenty-five (25) persons,
each of whom is elected at the annual meeting of shareholders to serve a one-
year term. The number of directors is fixed within the above-stated limit from
time to time by resolution of the board of directors. The board of directors
may adopt a resolution to amend the maximum number of twenty-five (25)
directors, which resolution must be approved by NBC's shareholders. NBC
directors may only be removed for cause, which is defined as "final conviction
of a felony, unsound mind, adjudication of bankruptcy, non-acceptance of office
or conduct prejudicial to the interests of the Corporation," by the affirmative
vote of a majority of NBC's entire board of directors or by the requisite vote
of NBC's shareholders.
The MBCA permits corporations to (i) include provisions in their articles
of incorporation that limit the personal liability of directors and officers,
among others, for monetary damages resulting from breaches of the duty of care,
subject to certain exceptions, and (ii) indemnify the directors and officers,
among others, in certain circumstances for their expenses and liabilities
incurred in connection with defending pending or threatened proceedings, as
defined in the paragraph below. NBC's articles of incorporation and by-laws
include provisions that eliminate the personal liability of its directors,
officers, employees and agents to NBC and its shareholders for monetary damages
for breach of fiduciary duty to the full extent currently permitted by the MBCA.
Specifically, directors are exempt from liability, except for liability (i) for
any breach of the director's duty of loyalty to NBC or its shareholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for voting or assenting to an illegal
distribution of corporate assets, or (iv) for any transaction from which the
director derived an improper personal benefit.
If any proceeding, whether civil, criminal, administrative or
investigative, is brought against an NBC director, officer, employee or agent,
then NBC's articles of incorporation and by-laws provide for indemnification and
advancement of all expenses needed by the director, officer, employee or agent
to defend the litigation. The director, officer, employee or agent has no
obligation to repay the expenses forwarded for this purpose, unless it is
determined ultimately by NBC that the director, officer, employee or agent is
not entitled to indemnification.
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NBC's by-laws authorize NBC to maintain insurance covering the actions of
its directors, officers, employees or agents and provide for indemnification to
the fullest extent allowed under the MBCA.
Amendment of By-laws
NBC's By-laws may be amended or repealed by a majority vote of the entire
board of directors or by the affirmative vote of the holders of at least two-
thirds (66 2/3%) of NBC's outstanding common stock.
Shareholders Meetings
The annual meeting of NBC shareholders is held on the second Tuesday in
April of each year at NBC's principal office in Starkville, Mississippi unless a
different time or place, either within or without Mississippi, is designated by
the board of directors.
Special meetings of NBC shareholders may be called by the President, the
Chairman of the Board of Directors, a majority of the board of directors, or by
the holders of more than twenty percent (20%) of NBC's outstanding common stock.
The transfer agent and registrar for NBC's common stock is SunTrust Bank,
Atlanta, Georgia.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a)(b) The financial statements required to be filed with this Form 8-K will be
filed by amendment no later than October 31, 1999.
(c) Exhibits. The exhibits filed herewith are listed on the Exhibit Index
following the Signature page.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, NBC
has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
NBC CAPITAL CORPORATION
/s/ Richard T. Haston
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By: Richard T. Haston
Executive Vice-President, Chief
Financial Officer and Treasurer
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EXHIBIT INDEX
2.1 Agreement and Plan of Merger by and between NBC Capital Corporation and
FFBS Bancorp, Inc. dated February 3, 1999 (included as Appendix A to the
Proxy Statement-Prospectus dated May 7, 1999 forming part of NBC's
Registration Statement on Form S-4 filed with the Commission on March 30,
1999, Commission file no. 333-75293, which Registration Statement is
incorporated herein by reference as Exhibit 99.1 below).
2.2 Plan of Reorganization and Merger by and between National Bank of Commerce
and First Federal Bank for Savings dated February 3, 1999 (included as
Appendix A to the Proxy Statement-Prospectus dated May 7, 1999 forming part
of NBC's Registration Statement on Form S-4 filed with the Commission on
March 30, 1999, Commission file no. 333-75293, which Registration Statement
is incorporated herein by reference as Exhibit 99.1 below).
4.1 Articles of Incorporation of NBC Capital Corporation (included as Exhibit B
to NBC Capital Corporation's Definitive Proxy Statement dated March 20,
1998, and filed with the Commission on March 18, 1998, Commission file no.
0-12885, which Exhibit B is incorporated herein by reference).
4.2 By-laws of NBC Capital Corporation (included as Exhibit 3(b) to NBC Capital
Corporation's Registration Statement on Form S-4A, filed with the
Commission on November 4, 1998, Commission file no. 333-65545, which
Exhibit 3(b) is incorporated herein by reference).
23.1 Consent of T. E. Lott & Company (to be filed by amendment).
99.1 NBC's Registration Statement on Form S-4, and the Amendment thereto
(together the "Registration Statement," filed with the Commission on
March 30, 1999 and April 28, 1999, respectively, Commission file no.
333-75293), which Registration Statement is incorporated herein by
reference.
