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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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FIRST COMMERCE CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina Applied For
(State of incorporation or organization) (I.R.S. Employer Identification No.)
301 South McDowell Street
Suite 100 28204
Charlotte, North Carolina (Zip Code)
(Address of principal executive offices)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. |_|
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is to become effective pursuant to General
Instruction A.(d), check the following box. |X|
Securities Act registration statement file number to which this form
relates: None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, no par value
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
General. The Registrant is authorized to issue 20,000,000 shares of common
stock and 5,000,000 shares of preferred stock. Neither the authorized common
stock nor the authorized preferred stock has any par value. There are 922,689
shares of the common stock issued and outstanding as of the date of this Form
8-A.
The common stock will represent nonwithdrawable capital, will not be an
account of an insurable type, and will not be insured by the FDIC or any other
governmental entity. All of the common stock issued and outstanding is duly
authorized, validly issued, fully paid, and nonassessable.
Dividends. The Registrant's Board of Directors has the authority to declare
dividends on the common stock, subject to statutory and regulatory requirements.
The Registrant's Board of Directors will periodically review its policy
concerning dividends. Declarations of dividends, if any, by the Registrant's
Board of Directors will depend upon a number of factors, including investment
opportunities available to the Registrant, capital requirements, regulatory
limitations, the Registrant's results of operations and financial condition, tax
considerations and general economic conditions. Upon review of such
considerations, the Registrant's Board of Directors may authorize dividends to
be paid in the future if it deems such payment appropriate and in compliance
with applicable law and regulation. No assurances are given that any dividends
will in fact be paid on the common stock or that, if dividends are paid, they
will not be reduced or discontinued in the future.
The principal sources of income to the Registrant initially will consist of
income from dividends paid by First Commerce Bank to the Registrant. North
Carolina commercial banks, such as First Commerce Bank, are subject to legal
limitations on the amounts of dividends they are permitted to pay. Dividends may
be paid by First Commerce Bank from undivided profits, which are determined by
deducting and charging certain items against actual profits, including any
contributions to surplus required by North Carolina law. Also, an insured
depository institution, such as First Commerce Bank, is prohibited from making
capital distributions, including the payment of dividends, if, after making such
distributions, the institution would become "undercapitalized" (as such term is
defined in the applicable law and regulations). Consequently, future
declarations of cash dividends by the Registrant will depend upon dividend
payments by First Commerce Bank to the Registrant, which payments are subject to
various restrictions.
The holders of the common stock will be entitled to receive and share
ratably in such dividends as may be declared thereon by the Registrant's Board
of Directors out of funds legally available therefor, subject to applicable
statutory and regulatory restrictions.
Stock Repurchases. The shares of the common stock do not have any
redemption provisions. Stock repurchases are subject to Federal Reserve Board
regulations.
Voting Rights. The holders of shares of the common stock, as the only class
of capital stock of the Registrant outstanding, possess exclusive voting rights
with respect to the Registrant. Such holders have the right to elect the
Registrant's Board of Directors and to act on such other matters as are required
to be presented to shareholders under North Carolina law or as are otherwise
presented to them. Each holder of the common stock will be entitled to one vote
per share. The holders of the common stock have no right to vote their shares
cumulatively in the election of directors.
Liquidation Rights. In the event of a liquidation, dissolution or winding
up of the Registrant, the holders of the common stock would be entitled to
ratably receive, after payment of or making of adequate provisions for all debts
and liabilities of the Registrant, all remaining assets of the Registrant
available for distribution.
Preemptive Rights. Holders of the common stock will not be entitled to
preemptive rights with respect to any shares which may be issued by the
Registrant.
Preferred Stock. None of the 5,000,000 shares of the Registrant's
authorized preferred stock have been issued. Such stock may be issued in one or
more series with such rights, preferences, and designations as the Registrant's
Board of Directors may from time to time determine subject to applicable law and
regulation. If and when such shares are issued, holders of such shares may have
certain preferences, powers and rights (including voting rights) senior to the
rights of the holders of the common stock. The Registrant's Board of Directors
can (without shareholder approval) issue preferred stock with voting and
conversion rights which could, among other things, adversely affect the
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voting power of the holders of the common stock and assist management in
impeding an unfriendly takeover or attempted change in control of the Registrant
that some shareholders may consider to be in their best interests but to which
management is opposed. The Registrant has no current plans to issue preferred
stock.
Restrictions on Acquisition. Acquisitions of the Registrant and
acquisitions of the capital stock of the Registrant are restricted by provisions
in the Articles of Incorporation and Bylaws of the Registrant and by various
federal and state laws and regulations. The Articles of Incorporation and Bylaws
of the Registrant contain certain provisions that are intended to encourage a
potential acquiror to negotiate any proposed acquisition of the Registrant
directly with the Registrant's Board of Directors.
An unsolicited non-negotiated takeover proposal can seriously disrupt the
business and management of a corporation and cause it great expense.
Accordingly, the Registrant's Board of Directors believes it is in the best
interests of the Registrant and its shareholders to encourage potential
acquirors to negotiate directly with management. The Registrant's Board of
Directors believes that these provisions will encourage such negotiations and
discourage hostile takeover attempts. It is also the view of the Registrant's
Board of Directors that these provisions should not discourage persons from
proposing a merger or transaction at prices reflective of the true value of the
Registrant and that otherwise is in the best interests of all shareholders.
However, these provisions may have the effect of discouraging offers to purchase
the Registrant or its securities which are not approved by the Registrant's
Board of Directors but which certain of the Registrant's shareholders may deem
to be in their best interests or pursuant to which shareholders would receive a
substantial premium for their shares over the current market prices. As a
result, shareholders who might desire to participate in such a transaction may
not have an opportunity to do so. Such provisions will also render the removal
of the Registrant's Board of Directors and management more difficult. The
Registrant's Board of Directors believes these provisions are in the best
interests of the shareholders because they will assist the Registrant's Board of
Directors in managing the affairs of the Registrant in the manner they believe
to be in the best interests of shareholders generally and because a company's
board of directors is often best able in terms of knowledge regarding the
company's business and prospects, as well as resources, to negotiate the best
transaction for its shareholders as a whole.
The following description of certain of the provisions of the Articles of
Incorporation and Bylaws of the Registrant is necessarily general and reference
should be made in each instance to such Articles of Incorporation and Bylaws.
Board of Directors. The Articles of Incorporation and Bylaws of the
Registrant provide that the number of directors shall not be less than twelve
nor more than eighteen. The number of directors currently is fourteen, but such
number may be changed by resolution of the Registrant's Board of Directors.
These provisions have the effect of enabling the Registrant's Board of Directors
to elect directors friendly to management in the event of a non-negotiated
takeover attempt and may make it more difficult for a person seeking to acquire
control of the Registrant to gain majority representation on the Registrant's
Board of Directors in a relatively short period of time. The Registrant believes
these provisions to be important to continuity in the composition and policies
of the Registrant's Board of Directors.
The Articles of Incorporation and Bylaws of the Registrant provides for
staggered elections of directors when the number of directors on the
Registrant's Board of Directors is nine or more. As a result, the existing
fourteen directors on the Registrant's Board of Directors have been divided into
three classes having terms of one, two, or three years. Beginning with the
Registrant's 2002 annual meeting of stockholders (and continuing so long as the
number of directors shall be nine or more) all directors will be elected to
terms of three years each. The existence of staggered terms has the effect of
making it more difficult for a person seeking to acquire control of the
Registrant to gain majority representation on the Registrant's Board of
Directors.
Cumulative Voting. The Registrant's Articles of Incorporation do not
provide for cumulative voting for any purpose. Cumulative voting in election of
directors entitles a shareholder to cast a total number of votes equal to the
number of directors to be elected multiplied by the number of his or her shares
and to distribute that number of votes among such number of nominees as the
shareholder chooses. The absence of cumulative voting for directors limits the
ability of a minority shareholder to elect directors. Because the holder of less
than a majority of the Registrant's shares cannot be assured representation on
the Registrant's Board of Directors, the absence of cumulative voting may
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discourage accumulations of the Registrant's shares or proxy contests that would
result in changes in the Registrant's management. The Registrant's Board of
Directors believes that: (i) the absence of cumulative voting helps to assure
continuity and stability of management and policies; (ii) directors should be
elected by a majority of the shareholders to represent the interests of the
shareholders as a whole rather than be the special representatives of particular
minority interests; and (iii) efforts to elect directors representing specific
minority interests are potentially divisive and could impair the operations of
the Registrant.
Special Meetings. The Bylaws of the Registrant provide that special
meetings of shareholders of the Registrant may be called by the Chairman of the
Board, the Chief Executive Officer, the President, or by the Registrant's Board
of Directors. If a special meeting is not called by such persons or entities,
shareholder proposals cannot be presented to the shareholders for action until
the next annual meeting.
Preemptive Rights. The Registrant's Articles of Incorporation do not
provide for preemptive rights with respect to any shares which may be issued by
the Registrant.
Capital Stock. The Registrant's Articles of Incorporation authorizes the
issuance of 20,000,000 shares of common stock and 5,000,000 shares of preferred
stock. This provides the Registrant's Board of Directors with flexibility to
issue additional shares, without further shareholder approval, for proper
corporate purposes, including financings, acquisitions, stock dividends, stock
splits, employee stock options and other appropriate purposes. However, issuance
of additional authorized shares may also have the effect of impeding or
deterring future attempts to gain control of the Registrant. The Registrant's
Board of Directors also has sole authority to determine the terms of any one or
more series of preferred stock, including voting rights, conversion rates,
dividend rights, and liquidation preferences, which could adversely affect the
voting power of the holders of the common stock and discourage an attempt to
acquire control of the Registrant. The Registrant's Board of Directors has no
plans to issue any preferred stock, except on terms which it deems to be in the
best interests of the Registrant and its shareholders. However, the Registrant's
Board of Directors has the power, to the extent consistent with its fiduciary
duties, to issue preferred stock to persons friendly to management or otherwise
in order to impede attempts by third parties to acquire voting control of the
Registrant and to impede other transactions not favored by management.
Director Nominations. The Bylaws of the Registrant require a shareholder
who intends to nominate a candidate for election to the Registrant's Board of
Directors at a shareholders' meeting to give written notice to the Secretary of
the Registrant at least 50 days (but not more than 90 days) in advance of the
date of the meeting at which such nomination will be made. The nomination notice
is also required to include specified information concerning the nominee and the
proposing shareholder. The Registrant's Board of Directors believes that it is
in the best interests of the Registrant and its shareholders to provide
sufficient time for the Registrant's Board of Directors to study all nominations
and to determine whether to recommend to the shareholders that such nominees be
considered.
Supermajority Voting Provisions. The Registrant's Articles of Incorporation
requires the affirmative vote of 75% of the outstanding shares entitled to vote
to approve a merger, consolidation, or other business combination, unless the
transaction is approved, prior to consummation, by the vote of at least 75% of
the members of the Continuing Directors (as defined in the Articles of
Incorporation) of the Registrant's Board of Directors. "Continuing Directors"
generally includes all members of the Registrant's Board of Directors who are
not affiliated with any individual, partnership, trust or other person or entity
(or the affiliates and associates of such person or entity) which becomes a
beneficial owner of 10% or more of the voting shares of the Registrant after the
Registrant's date of incorporation. This provision could tend to make the
acquisition of the Registrant more difficult to accomplish without the
cooperation or favorable recommendation of the Registrant's Board of Directors.
When evaluating such business combinations, the Registrant's Board of Directors
will consider (i) the social and economic effects of acceptance of such an offer
on its depositors, borrowers, other customers, employees, and creditors of the
Registrant and its subsidiaries, and on the communities in which the Registrant
and its subsidiaries operate or are located; (ii) the ability of the Registrant
and its subsidiaries to fulfill the objectives of a bank and/or bank holding
company, as applicable, and of commercial banking entities, as applicable, under
applicable federal and state statutes and regulations; (iii) the business and
financial condition and prospects and earnings prospects of the person or group
proposing the combination, including, but not limited to, debt service and other
existing financial obligations, financial obligations to be incurred in
connection with the combination, and other likely financial obligations of such
person or group, and the possible effect of such
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conditions and prospects upon the Registrant and its subsidiaries and the
communities in which the Registrant and its subsidiaries are located; (iv) the
competence, experience, and integrity of the person or group proposing the
combination and its or their management; and (v) the prospects for successful
conclusion of the proposed combination.
Currently, more than 26.54% of the common stock is owned by five percent or
more shareholders and directors and executive officers of the Registrant.
State and Federal Law Restrictions on Acquisitions. The Registrant's
Articles of Incorporation provide that the North Carolina Shareholder Protection
Act and the North Carolina Control Share Acquisition Act will not apply to the
Registrant.
The Change in Bank Control Act, together with North Carolina regulations,
require that the consent of the North Carolina Commissioner of Banks and Federal
Reserve Board be obtained prior to any person or company acquiring "control" of
a North Carolina-chartered bank or a North Carolina-chartered bank holding
company. Upon acquiring control, such acquiror will be deemed to be a bank
holding company. Control is conclusively presumed to exist if, among other
things, an individual or company acquires the power, directly or indirectly, to
direct the management or policies of the Registrant or to vote 25% or more of
any class of voting stock. Control is rebuttably presumed to exist under the
Change in Bank Control Act if, among other things, a person acquires more than
10% of any class of voting stock, and the issuer's securities are registered
under Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or the person would be the single largest shareholder.
Restrictions applicable to the operations of bank holding companies and
conditions imposed by the Federal Reserve in connection with its approval of
such acquisitions may deter potential acquirors from seeking to obtain control
of the Registrant.
Resales of the Common Stock. The common stock has not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and instead will
be issued in reliance on the exemption contained in Section 3(a)(12) thereof for
securities issued in connection with certain acquisitions by a bank holding
company. Under Section 3(a)(12) and the related provisions of the Securities
Act, (i) shares of the common stock will be freely transferable under the
Securities Act by those shareholders of the Registrant not deemed to be
"affiliates" of the Registrant and (ii) pursuant to Rule 145 under the
Securities Act, shares of the common stock acquired by persons who are
"affiliates" of the Registrant will be subject to the resale restrictions
contained in paragraphs (c), (e), (f), and (g) of Rule 144 under the Securities
Act. Affiliates are generally defined as persons who control, are controlled by,
or are under common control with the Registrant (generally executive officers
and directors).
Under paragraph (e) of Rule 144, each affiliate of the Registrant, together
with any other person whose sales are required to be aggregated with those of
the affiliate under Rule 144, would be able to sell in the public market,
without registration, a number of shares not to exceed, in any three-month
period, the greater of (i) 1% of the outstanding shares of the common stock or
(ii) the average weekly trading volume in such shares during the preceding four
calendar weeks. Pursuant to paragraph (f) of Rule 144, the shares are required
to be sold in "brokers' transactions," as defined in paragraph (g) of Rule 144,
or in transactions directly with a "market maker," as defined in Section
3(a)(38) of the Exchange Act, as well as comply with certain other manner of
sale requirements set forth in paragraph (f). Pursuant to paragraph (c) of Rule
144, the ability of affiliates to resell shares of the common stock under Rule
144 will be subject to the Registrant having satisfied its Exchange Act
reporting requirements for specified periods prior to the time of sale.
Affiliates also would be permitted to resell the common stock pursuant to an
effective registration statement under the Securities Act or an available
exemption from the Securities Act registration requirements.
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ITEM 2. EXHIBITS
Exhibit Number Description
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(3)(I) Articles of Incorporation of First Commerce Corporation
(3)(II) Bylaws of First Commerce Corporation
(4) Copy of the form certificate for each security to be
registered hereunder.
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Registration Statement on Form 8-A
to be signed on its behalf by the undersigned, thereto duly authorized.
FIRST COMMERCE CORPORATION
Date: May 24, 2001 By: /s/ Wesley W. Sturges
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Wesley W. Sturges, President
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