EXHIBIT 1.2
REGIONS FINANCIAL CORPORATION
(a Delaware corporation)
$600,000,000
6.375% Subordinated Notes due 2012
UNDERWRITING AGREEMENT
New York, New York
May 9, 2002
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Regions Financial Corporation, a Delaware corporation (the "Company"),
proposes, upon the terms and conditions set forth in this underwriting agreement
(this "Agreement") to issue and sell its 6.375% Subordinated Notes due 2012 in
an aggregate principal amount equal to $600,000,000 (the "Securities") to X.X.
Xxxxxx Securities Inc. and the other Underwriters set forth on Schedule I
attached hereto (collectively, the "Underwriters"), for whom you (the
"Representatives") are acting as representatives.
The Securities issued in book-entry form will be issued to Cede & Co.,
as nominee of The Depository Trust Company ("DTC"), pursuant to a letter
agreement, to be dated as of the Closing Date (as defined herein) (the "DTC
Agreement"), between the Company and DTC.
The Securities will be issued pursuant to an indenture, dated as of May
15, 2002 (the "Original Indenture"), as supplemented by the Supplemental
Indenture, dated as of May 15, 2002 (the "Supplemental Indenture" and, together
with the Original Indenture, the "Indenture"), in each case, between the Company
and Deutsche Bank Trust Company Americas, as trustee (the "Indenture Trustee").
The Indenture, the DTC Agreement and this Agreement are collectively
referred to as the "Operative Agreements."
The Company and certain trusts sponsored by the Company have filed with
the Securities and Exchange Commission (the "Commission") a joint registration
statement on Form S-3 (No. 333-74102) and pre-effective amendment no. 1 thereto,
for the registration of the Securities and certain other securities described
therein under the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Such Registration Statement has been declared effective by the Commission and
the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act").
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations") on or before the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the 1934 Act or
the 1934 Act Regulations after the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus or the Final Prospectus, as the case
may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
For purposes of this Agreement, all references to the Registration
Statement, the Basic Prospectus, or the Final Prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as of the date hereof and as of
the Closing Date (in each case, a "Representation Date"), as set forth below.
(a) The Company meets the requirements for use of Form S-3
under the 1933 Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related basic prospectus,
for registration under the 1933 Act of the offering and sale of the
Securities and certain other securities. The Company has filed one
amendment thereto, which has previously been furnished to you. The
Company shall next file with the Commission a final prospectus in
accordance with Rules 415 and 424(b). As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the Basic Prospectus) as the Company has advised you,
prior to the Execution
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Time, will be included or made therein. The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Regulations and the 1939 Act and the rules and
regulations thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date, the Indenture did or will comply in all material respects
with the applicable requirements of the 1939 Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) those parts of the Registration Statement which shall constitute
Statements of Eligibility and Qualification on Form T-1 (the "Form
T-1s") under the 1939 Act or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The Company and each of its Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation or a
bank, as applicable, in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate
power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification.
(d) The Company is duly registered as a financial holding
company under the Bank Holding Company Act of 1956, as amended (the
"BHC Act").
(e) Regions Bank is a duly organized and validly existing
Alabama state chartered bank and continues to hold a valid certificate
to do business as such; and is an insured depositary institution under
the provisions of the Federal Deposit Insurance Act, as amended.
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(f) Since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus, there
has been no material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its Significant Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated by the Final Prospectus (a "Material
Adverse Effect").
(g) The outstanding shares of capital stock of the Company are
as set forth in the Final Prospectus in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances
thereof, if any, pursuant to reservations, agreements or employee
benefit plans or pursuant to the exercise of convertible securities or
options). Such shares of capital stock have been duly authorized and
validly issued by the Company and are fully paid and non-assessable,
and none of such shares of capital stock was issued in violation of
preemptive or other similar rights of any securityholder or the
Company.
(h) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable (except as provided in
statutes pursuant to which depository institution subsidiaries are
subject), and, except as otherwise set forth in the Final Prospectus, a
controlling majority of the outstanding shares of voting capital stock
of the Significant Subsidiaries are owned by the Company, either
directly or through wholly owned subsidiaries, free and clear of any
perfected security interest or any other security interests, claims,
liens or encumbrances.
(i) The Indenture has been duly authorized, and, at the
Closing Date will have been duly executed and delivered by the Company
and, assuming due authorization, execution and delivery by the
Indenture Trustee, will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered
in a proceeding in equity or at law).
(j) The Securities have been duly authorized by the Company
for issuance as contemplated by this Agreement. The Securities, when
issued and authenticated in the manner provided for in the Indenture
and delivered against payment of the consideration therefor in
accordance with the terms of this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a
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proceeding in equity or at law). The Securities will be in the form
contemplated by, and each registered holder thereof will be entitled to
the benefits of, the Indenture.
(k) The Securities and the Operative Agreements, as of each
Representation Date, will conform in all material respects to the
statements relating thereto contained in the Final Prospectus and will
be in substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(l) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be, an
"investment company" as defined in the Investment Company Act of 1940,
as amended (the "1940 Act").
(m) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the 1933 Act and the 1939 Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters in
the manner contemplated herein and in the Final Prospectus.
(n) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its Significant
Subsidiaries pursuant to, (i) the charter or by-laws of the Company or
any of its Significant Subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its Significant Subsidiaries
is a party or bound or to which its or their property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its Significant Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of its Significant Subsidiaries or any of its or their properties
which violation or default would, in the case of clauses (ii) and (iii)
above, either individually or in the aggregate with all other
violations and defaults referred to in this paragraph (n), reasonably
be expected to result in a Material Adverse Effect.
(o) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries included in
the Final Prospectus and the Registration Statement present fairly in
all material respects the financial condition, results of operations
and cash flows of the Company and its consolidated subsidiaries as of
the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations and have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted
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therein). The selected financial data set forth under the caption
"Selected Historical Financial Data" in the Final Prospectus fairly
present, on the basis stated in the Final Prospectus, the information
included therein.
(p) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited consolidated
financial statements and schedules included in the Final Prospectus,
are independent public accountants with respect to the Company within
the meaning of the 1933 Act and the 1933 Act Regulations.
(q) Except as disclosed in the Final Prospectus, no action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
Significant Subsidiaries or its or their property is pending or, to the
best knowledge of the Company, threatened that (i) would reasonably be
expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) would reasonably be expected to result in a Material
Adverse Effect.
(r) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or by-laws, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, which violation or default would, in the
case of clauses (ii) and (iii) above, either individually or in the
aggregate with all other violations and defaults referred to in this
paragraph (r), reasonably be expected to result in a Material Adverse
Effect.
(s) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not reasonably be expected to have a Material Adverse Effect and
has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not
reasonably be expected to result in a Material Adverse Effect.
(t) The Company and each of its Significant Subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company or any of its Significant
Subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company and
its Significant Subsidiaries are in compliance with the terms of such
policies and instruments in all material respects; and there are no
claims
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by the Company or any of its Significant Subsidiaries under any such
policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither
the Company nor any such subsidiary has been refused any insurance
coverage sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not reasonably be expected
to result in a Material Adverse Effect.
(u) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's property or
assets to the Company or any other subsidiary of the Company, except as
described in or contemplated by the Final Prospectus and applicable
banking laws and regulations.
(v) The Company and its Significant Subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary
to conduct their respective businesses, and neither the Company nor any
such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected
to result in a Material Adverse Effect.
(w) The Company and each of its Significant Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(x) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the 1934 Act, the 1934 Act
Regulations or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(y) The Company and its Significant Subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not
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received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where
such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect. Except as set forth in the Final Prospectus,
neither the Company nor any of the Significant Subsidiaries has been
named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(z) Except as disclosed in the Registration Statement and the
Final Prospectus, the Company (i) does not have any material lending or
other relationship with any bank or lending affiliate of X.X. Xxxxxx
Securities Inc. and (ii) does not intend to use any of the proceeds
from the sale of the Securities hereunder to repay any outstanding debt
owed to any affiliate of X.X. Xxxxxx Securities Inc.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment.
(a) Delivery. Delivery of and payment for the Securities shall
be made on the date which is four Business Days after the Execution
Date, which date and time may be postponed by agreement among the
Representatives and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Securities shall be made
through the facilities of DTC unless the Representatives shall
otherwise instruct. Delivery of the Securities shall be made at such
location as X.X. Xxxxxx Securities Inc. shall reasonably designate at
least one Business Day in advance of the Closing Date. Certificates for
the Securities shall be registered in such names and in such
denominations as X.X. Xxxxxx Securities Inc. may request not less than
two Business Days in advance of the Closing Date. The Company agrees to
have the Securities available for inspection, checking and
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packaging by the Representatives in New York, New York, not later than
1:00 PM on the Business Day prior to the Closing Date.
(b) Payment. Payment of the purchase price for, and delivery
of, the Securities shall be made at the offices of Sidley Xxxxxx Xxxxx
& Wood LLP, 875 Third Avenue, New York, New York, or at such other
place as shall be agreed upon by the Underwriters and the Trust, at
9:00 A.M. (Eastern time) on the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the Company
has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Final Prospectus is otherwise required under Rule 424(b),
the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (1)
when the Final Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b) or when
any Rule 462(b) Registration Statement shall have been filed with the
Commission, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (3) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (4) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the 1933 Act, any event
occurs as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if
it shall be necessary to
9
amend the Registration Statement or supplement the Final Prospectus to
comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) The Company will use the net proceeds received by them
from the sale of the Securities in the manner specified in the Final
Prospectus under "Use of Proceeds."
(d) The Company, during the period when a prospectus relating
to the Securities is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act and the 1934 Act Regulations within
the time periods required thereby.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its Significant
Subsidiaries which will satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 under the 1933 Act Regulations.
(f) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the 1933 Act, as many copies of the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Securities and will pay any fee of the National Association of
Securities Dealers, Inc. ("NASD") in connection with its review of the
offering; provided, that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale
of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company will not, without the prior written consent of
X.X. Xxxxxx Securities Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of
the Company) directly or indirectly,
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including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the 1934 Act, any debt
securities issued by the Company (other than the Securities) or
publicly announce an intention to effect any such transaction, until
the Business Day set forth on Schedule I hereto.
(i) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the 1934 Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of their respective obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Bird
LLP, counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) Each of the Company and Regions Bank is validly
existing as a corporation and a bank, respectively, in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Final Prospectus. The Company is duly qualified to do business
as a foreign corporation and is in good standing under the
laws of the State of Alabama.
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(ii) The Company is duly registered as a financial
holding company under the BHC Act.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company, and constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity or law, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law).
(v) The Securities have been duly authorized,
executed and delivered by the Company for issuance and, when
authenticated by the Indenture Trustee in the manner provided
for in the Indenture and delivered against payment for the
consideration therefor in accordance with the terms of this
Agreement, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law). The
Securities are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the
Indenture.
(vi) The Securities and the Operative Agreements
conform in all material respects to the statements relating
thereto contained in the Final Prospectus and, to the extent
applicable, are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit
to the Registration Statement.
(vii) The statements in the Registration Statement
and the Final Prospectus, insofar as they are descriptions of
contracts, agreements, instruments or the Company's
Certificate of Incorporation or legal proceedings, or
constitute statements or summaries of United States federal,
New York State laws or the General Corporation Law of the
State of Delaware or legal conclusions with respect thereto,
are accurate and present fairly the information required to be
shown in all material respects.
(viii) The Registration Statement and the Final
Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration
Statement and Final Prospectus, excluding the documents
12
incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements
and supporting schedules and other financial data included
therein or omitted therefrom and each Form T-1, as to which
such counsel express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(ix) The documents incorporated by reference in the
Final Prospectus (other than the financial statements and
supporting schedules and other financial data included therein
or omitted therefrom, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act, the
1933 Act Regulations, the 1934 Act or the 1934 Act
Regulations, as applicable.
(x) The Registration Statement has become effective
under the 1933 Act; any required filing of the Basic
Prospectus, and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner
and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final
Prospectus (other than the financial statements and other
financial information contained therein and in each Form T-1,
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the
1934 Act Regulations and the 1939 Act and the rules and
regulations of the Commission thereunder and such counsel has
no reason to believe that on the Effective Date or the date
the Registration Statement was last deemed amended, the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus as of its
date and on the Closing Date included or includes any untrue
statement of a material fact or omitted 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 (in each case, other than the financial statements
and other financial information contained therein and each
Form T-1, as to which such counsel need express no opinion).
(xi) The Indenture has been duly qualified under the
0000 Xxx.
(xii) The statements included in the Final Prospectus
under the heading "Certain United States Federal Income Tax
Consequences," insofar as such statements summarize legal
matters, are accurate and fair summaries of such legal matters
in all material respects.
13
(xiii) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be, an "investment company" as defined in the 1940
Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York, the Federal laws of the United States or
the General Corporation Law of the State of Delaware, to the extent
they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and who
are satisfactory to counsel for the Underwriters and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have requested and caused Xxxxxx X.
Xxxxxxxx, Xx., Executive Vice President, General Counsel and Corporate
Secretary of the Company, to have furnished to the Representatives his
opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) No consent, approval, authorization, filing with
or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein, except such as have been obtained under the 1933 Act
and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus and
such other approvals (specified in such opinion) as have been
obtained.
(ii) Neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its Significant
Subsidiaries pursuant to, (A) the charter or by-laws of the
Company or its Significant Subsidiaries, (B) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or its
Significant Subsidiaries is a party or bound or to which its
or their property is subject, or (C) any statute, law, rule,
regulation, judgment, order or decree applicable to the
Company or its Significant Subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the
Company or its Significant Subsidiaries or any of its or their
properties, which violation or default would, in the case of
clauses (B) and (C) above, either individually or in the
aggregate with all other violations and defaults referred to
14
in this paragraph (ii) (if any), reasonably be expected to
result in a Material Adverse Effect.
(iii) To the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Significant
Subsidiaries or their respective property, of a character
required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a character
required to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit thereto, which
is not described or filed as required; and the statements
incorporated by reference in the Final Prospectus from Item
1(c) of the Company's most recent Annual Report on Form 10-K
insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(d) The Representatives shall have received from Sidley Xxxxxx
Xxxxx & Xxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the Operative
Agreements, the Registration Statement, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received from Xxxxxx &
Xxxxxx LLP, counsel for the Indenture Trustee, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to such matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to the Representatives a
certificate signed by the Chief Executive Officer or Vice Chairman and
the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
15
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no Material Adverse Effect.
(g) The Company shall have requested and caused Ernst & Young
LLP to have furnished to the Representatives, at the Execution Time and
at the Closing Date, letters, (which may refer to letters previously
delivered to one or more of the Representatives), dated respectively as
of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (i) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its Significant Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectus the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(i) At the Closing Date, the Securities shall be rated in one
of the four highest rating categories for long-term debt ("Investment
Grade") by Standard & Poor's Rating Service and by Xxxxx'x Investors
Service, Inc., and the Company shall have delivered to the Underwriters
a letter, dated as of the Closing Date, or within three Business Days
thereafter, from each such rating organization, or other evidence
satisfactory to the Underwriters, confirming that the Securities have
such ratings. Since the time of execution of this Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Securities or any of the Company's securities or
financial strength by any such rating organization or any other
"nationally recognized statistical rating organization," as defined for
purposes of Rule 436(g)(2) under the 1933 Act Regulations, and no such
rating organization shall have publicly announced that it has under
surveillance or review with negative implications its rating of the
Securities or any of the Company's securities or financial strength.
(j) The NASD shall not have raised any objection with respect
to the fairness or reasonableness of the underwriting terms and
arrangements.
16
(k) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and
all obligations of the Underwriters hereunder may be canceled at, or at
any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through X.X. Xxxxxx Securities Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus or the Final Prospectus, or in any amendment thereof 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, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any
such
17
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its respective
directors, each of its respective officers who signs the Registration
Statement, and each person who controls the Company within the meaning
of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity in paragraph (a) above from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company and the Underwriters acknowledge that
the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading
"Underwriting," (i) the list of Underwriters and their respective
participation in the sale of the Securities, (ii) the sentences related
to concessions and reallowances and (iii) the paragraphs related to
stabilization, syndicate covering transactions and penalty bids in the
Final Prospectus constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in the Final
Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding
the indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of,
18
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating
to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions (before deducting expenses), in each case as
set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
19
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning
of either the 1933 Act or the 1934 Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the 1933 Act or the 1934 Act, each
officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the number of Securities set
forth opposite their names in Schedule II hereto bears to the number of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the number of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the number of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Securities shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on such exchange or the Nasdaq National Market, (ii) a banking
moratorium shall have been declared either by Federal, New York State or Alabama
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
20
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its respective officers or trustees and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to X.X. Xxxxxx Securities Inc. Transaction
Execution Group (fax no.: (000-000-0000) and confirmed to X.X. Xxxxxx Securities
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Transaction
Execution Group; or, if sent to the Company, will be mailed, delivered or
telefaxed to Regions Financial Corporation, Xxxxxx X. Xxxxxxxx, Xx. (fax no.:
(000) 000-0000) and confirmed to Xxxxxx X. Xxxxxxxx Xx., Executive Vice
President and General Counsel of Regions Financial Corporation, 000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or Birmingham, Alabama.
21
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the 1933 Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
REGIONS FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President,
General Counsel and Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXX & COMPANY, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX BARNEY INC.
UBS WARBURG LLC
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
23
SCHEDULE I
Underwriting Agreement dated: May 9, 2002
Registration Statement No. 333-74102
Representative(s): X.X. Xxxxxx Securities Inc., Xxxxxx Xxxxxx &
Company, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxxx Xxxxx Xxxxxx Inc.
and UBS Warburg LLC
Closing Date: May 15, 2002
Title: 6.375% Subordinated Notes due 0000
Xxxxxxxxx principal amount: $600,000,000
Stated maturity: May 15, 2012
Interest rate: 6.375% per annum
Interest payment dates: May 15 and November 15 of each year,
commencing November 15, 2002.
Record dates: The 1st calendar
day of the month
immediately prior to the
month in which each
interest payment date
falls.
Redemption provisions: The Securities are not redeemable prior to
maturity.
Initial public offering price: 99.745% of the aggregate principal amount
thereof plus accumulated interest, if any,
from May 15, 2002
Purchase price: 99.095% of the aggregate principal amount
thereof plus accumulated interest, if any,
from May 15, 2002
Underwriters' commission: 0.65% of the aggregate principal
amount thereof
Form: Book-entry only
Type of Offering: Non-delayed
I-1
Date referred to in Section 5(h) after which the Company may offer or sell
Securities issued by the Company without the consent of the Representative(s):
May 15, 2002.
Modification of items to be covered by the letter from
Ernst & Young LLP delivered pursuant to
Section 6(g) at the Execution Time: None
2
SCHEDULE II
Aggregate Principal
Amount of Securities to
Underwriters be Purchased
X.X. Xxxxxx Securities Inc.............................................. $450,000,000
Xxxxxx Xxxxxx & Company, Inc............................................ 60,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated...................... 30,000,000
Xxxxxxx Xxxxx Barney Inc................................................ 30,000,000
UBS Warburg LLC......................................................... 30,000,000
------------
Total....................................................... $600,000,000
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