REGIONS FINANCING TRUST II 6.625% Trust Preferred Securities (liquidation amount $1,000 per security) fully and unconditionally guaranteed by REGIONS FINANCIAL CORPORATION Underwriting Agreement
EXHIBIT 1.1
EXECUTION COPY
REGIONS FINANCING TRUST II
6.625% Trust Preferred Securities
(liquidation amount $1,000 per security)
fully and unconditionally guaranteed by
(liquidation amount $1,000 per security)
fully and unconditionally guaranteed by
REGIONS FINANCIAL CORPORATION
April 24, 2007
Xxxxxxx, Xxxxx & Co.,
As representative of the Several Underwriters,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
As representative of the Several Underwriters,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Regions Financing Trust II, a statutory trust created under the laws of the State of Delaware
(the “Trust”), and Regions Financial Corporation, a Delaware corporation (the “Guarantor”), as
depositor of the Trust and as Guarantor under the Guarantee referred to herein, propose, subject to
the terms and conditions stated herein, to sell to the underwriters named in Schedule I (the
“Underwriters”), for which Xxxxxxx, Sachs & Co. is acting as the representative (the
“Representative”), 700,000 of the Trust’s 6.625% Trust Preferred Securities, liquidation amount
$1,000 per security, referred to in Schedule II (the “Trust Preferred Securities”). The proceeds
of the sale of the Trust Preferred Securities and of the common securities of the Trust (the “Trust
Common Securities”) to be sold by the Trust to the Guarantor are to be invested in $700,010,000
principal amount of the Guarantor’s 6.625% Junior Subordinated Notes due 2077 (the “Junior
Subordinated Notes”), to be issued pursuant to the Junior Subordinated Indenture between the
Guarantor and Deutsche Bank Trust Company Americas (the “Indenture Trustee,” and such Junior
Subordinated Indenture, the “Base Indenture”), as amended and supplemented by a second supplemental
indenture between the Guarantor and the Indenture Trustee (the “Supplemental Indenture” and,
together with the Base Indenture, the “Indenture”), each to be entered into at or before the
Closing Date.
Capitalized terms used herein and not otherwise defined but that are defined in the
Declaration of Trust (as defined in Section 1(A)(g)) have the meanings specified in the Declaration
of Trust.
1. Representations and Warranties. (A) Each of the Guarantor and the Trust jointly
and severally represents and warrants to, and agrees with, each Underwriter as follows (except that
the representation, warranty and agreement in paragraph (d) of this Section 1(A) is given only by
the Guarantor and not by the Trust):
(a) Two registration statements on Form S-3 (File Nos. 333-124337 and 333-126797)
under the Securities Act of 1933, as amended (the “Securities Act”), in respect of the
Trust Preferred Securities and the Junior Subordinated Notes have been filed with the
Securities and Exchange Commission (the “Commission”) and have been declared effective by
the Commission and any post-effective amendment thereto became effective on filing or has
been declared effective by the Commission; no stop order suspending the effectiveness of
such registration statements or any part thereof has been issued, no proceeding for that
purpose has been initiated or, to the Guarantor’s knowledge, threatened by the Commission
and no notice of objection of the Commission to the use of such registration statements has
been received by the Guarantor or the Trust (the base prospectus filed as part of such
later registration statement, in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement)
relating to the Trust Preferred Securities filed with the Commission pursuant to Rule
424(b) under the Securities Act is hereinafter called a “Preliminary Prospectus”; the
various parts of such later registration statement, including all exhibits thereto but
excluding any Trustee’s Statement of Eligibility on Form T-1 (each a “Form T-1”), and
including any prospectus supplement relating to the Trust Preferred Securities that is
filed with the Commission and deemed by virtue of Rule 430B to be part of such later
registration statement, each as amended at the time such part of the later registration
statement became effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the
Applicable Time (as defined in Section 1(A)(c) hereof), is hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Trust Preferred Securities
filed with the Commission pursuant to Rule 424(b) under the Securities Act in accordance
with Section 5(A)(a) is hereinafter called the “Prospectus”; any reference herein to the
Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the date of such
prospectus; any reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any
post-effective amendment to the Registration Statement, any prospectus supplement relating
to the Trust Preferred Securities filed with the Commission pursuant to Rule 424(b) under
the Securities Act and any documents filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and incorporated therein, in each case after the date of the
Basic Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be;
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any reference to any amendment to the Registration Statement shall be deemed to refer
to and include any annual report of the Guarantor filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Securities Act relating to the Trust Preferred
Securities is hereinafter called an “Issuer Free Writing Prospectus”).
(b) No order preventing or suspending the use of any Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to the
requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to
the Guarantor by an Underwriter through the Representative expressly for use therein.
(c) For the purposes of this Agreement, the “Applicable Time” is 4:50 P.M. (New York
City time) on the date of this Agreement; the Pricing Prospectus as supplemented by the
final term sheet prepared and filed pursuant to Section 5(A)(a), taken together
(collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include
any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II
does not conflict with the information contained in the Registration Statement, the Pricing
Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Disclosure Package as of the Applicable Time, did
not include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in
writing to the Guarantor by an Underwriter through the Representative expressly for use
therein.
(d) The documents incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the
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rules and regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
any further documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Guarantor by an
Underwriter through the Representative expressly for use therein; and no such documents
were filed with the Commission since the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the execution of this
Agreement, except as set forth on Schedule III.
(e) The Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to each part of the Registration Statement and as of the
applicable filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Guarantor by an Underwriter through the Representative
expressly for use therein.
(f) The Trust has been duly created and is validly existing as a statutory trust in
good standing under the laws of the State of Delaware and, at the Closing Date, will have
the power and authority (trust and other) to own its property and conduct its business as
described in the Registration Statement, the Pricing Disclosure Package and the Prospectus
and to execute and deliver and perform its obligations under the Expense Agreement.
(g) The Trust has conducted and will conduct no business other than the transactions
contemplated by this Agreement and the Amended and Restated Declaration of Trust in
substantially the form previously provided to you and to be entered into at or before the
Closing Date among the Guarantor, as Depositor, Deutsche Bank Trust Company Americas, as
Property Trustee, Deutsche Bank Trust Company Delaware, as Delaware Trustee, and the
individuals named
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therein, as Administrative Trustees (collectively, the “Trustees,” and such Amended
and Restated Declaration of Trust, the “Declaration of Trust”) and described in the Pricing
Prospectus and the Prospectus; the Trust is not, and at the Closing Date will not be, a
party to or bound by any agreement or instrument other than this Agreement, the Declaration
of Trust and the Expense Agreement; and the Trust has no liabilities or obligations other
than those arising out of the transactions contemplated by this Agreement and the Expense
Agreement and described in the Pricing Prospectus and the Prospectus.
(h) At the Closing Date, the Trust Preferred Securities will have been duly authorized
and, when issued, delivered and paid for pursuant to this Agreement, will have been duly
and validly issued and will be fully paid and non-assessable beneficial interests in the
Trust entitled to the benefits of the Declaration of Trust and the Trust Preferred
Securities will conform in all material respects to the description thereof in the Pricing
Disclosure Package and the Prospectus.
(i) At the Closing Date, the Trust Common Securities will have been duly authorized
and will have been duly and validly issued and will be fully paid and non-assessable
(subject to the qualifications described in the proviso to Section 6(d)(vi)) beneficial
interests in the Trust entitled to the benefits of the Declaration of Trust and will
conform in all material respects to the description thereof contained in the Pricing
Disclosure Package and the Prospectus; the issuance of the Trust Common Securities is not
subject to preemptive or other similar rights; at the Closing Date, all of the issued and
outstanding Trust Common Securities will be directly owned by the Guarantor, free and clear
of all liens, encumbrances, equities or claims; and the Trust Common Securities and the
Trust Preferred Securities are the only beneficial interests in the Trust authorized to be
issued by the Trust.
(j) The holders of the Trust Preferred Securities will be entitled to the same
limitation on personal liability that is extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of Delaware.
(k) At the Closing Date, the Expense Agreement (collectively with this Agreement, the
“Trust Transaction Agreements”) will have been duly authorized, executed and delivered by
the Trust and will constitute a valid and legally binding instrument of the Trust,
enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfer and
conveyance), reorganization and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles (regardless of whether
enforcement is considered in a proceeding at law or equity); and the Trust Transaction
Agreements will conform in all material
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respects to the descriptions thereof contained in the Pricing Disclosure Package and
the Prospectus.
(l) This Agreement has been duly authorized, executed and delivered by the Trust.
(m) At the Closing Date, the Trust will have all power and authority necessary to
execute and deliver this Agreement, the Trust Preferred Securities, the Trust Common
Securities and the Expense Agreement, and to perform its obligations hereunder and
thereunder; the issuance by the Trust of the Trust Preferred Securities and the Trust
Common Securities in accordance with the Declaration of Trust, the purchase by the Trust of
the Junior Subordinated Notes, and the execution and delivery by the Trust of the Trust
Transaction Agreements and the performance by it of its obligations thereunder will not (i)
conflict with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Guarantor or any of its subsidiaries or the Trust is a
party or by which the Guarantor or any of its subsidiaries or the Trust is bound or to
which any of the property or assets of the Guarantor or any of its subsidiaries or the
Trust is subject; (ii) result in any violation of the provisions of the Declaration of
Trust, the Restated Certificate of Incorporation, as amended, or By-laws of the Guarantor
or (iii) result in any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Guarantor or any of its
Significant Subsidiaries (as defined herein) or the Trust or any of their properties, which
conflict, violation, breach or default would, in the case of clauses (i) and (iii) above,
either individually or in the aggregate along with all other violations and defaults
referred to in this paragraph (m), reasonably be expected to result in a material adverse
effect on the general affairs, management, financial position, stockholders’ equity, or
results of operations or prospects of the Guarantor and its 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 Pricing Prospectus (a “Material Adverse Effect”) or a
material adverse effect on the consummation of the transactions contemplated hereby; and no
consent, approval, authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the execution, delivery and
performance by the issue and sale of the Trust Preferred Securities and the Trust Common
Securities by the Trust in accordance with the terms of the Declaration of Trust, the
purchase by the Trust of the Junior Subordinated Notes, or the execution, delivery or
performance by the Trust of the Expense Agreement or the consummation by the Trust of the
transactions contemplated thereby, except such as have been obtained under the Securities
Act and such consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Trust Preferred Securities by the Underwriters.
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(n) The Trust is not, and after giving effect to the offering and sale of the Trust
Preferred Securities will not be, an “investment company” or an entity “controlled” by an
“investment company,” as such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”).
(B) The Guarantor represents and warrants to, and agrees with, each Underwriter that:
(a) The Guarantor and each of its “significant subsidiaries” (as such term is defined
in Rule 1-02(w) of Regulation S-X under the Securities Act; each a “Significant Subsidiary”
and, collectively, the “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 Pricing 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 (except in any case in which the failure to so qualify would
not reasonably be expected to have a Material Adverse Effect).
(b) The Guarantor is duly registered as a bank holding company and a financial holding
company under the Bank Holding Company Act of 1956, as amended (the “BHC Act”).
(c) 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.
(d) Neither the Guarantor nor any of its Significant Subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated by reference
in the Pricing Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus; since the respective dates as of which information
is given in the Registration Statement and the Pricing Prospectus, there has not been (x)
any change in the capital stock of the Guarantor or any of its Significant Subsidiaries
(other than issuances or other transfers of capital stock in the ordinary course of
business pursuant to the Guarantor’s employee benefit plans or stock repurchases made in
connection with stock repurchase plans), (y) any increase in the long-term debt of the
Guarantor and its subsidiaries, or (z) any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the
Guarantor and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the
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Pricing Prospectus; and Regions Bank is a Significant Subsidiary, and no other
subsidiary of the Guarantor is a Significant Subsidiary.
(e) The outstanding shares of capital stock of the Guarantor are as set forth in the
Pricing Prospectus (as of the date set forth therein) in the column entitled “Actual” under
the caption “Capitalization.” Such shares of capital stock have been duly authorized and
validly issued by the Guarantor and are fully paid and non-assessable, and none of such
shares of capital stock were issued in violation of preemptive or other similar rights of
any securityholder or the Guarantor.
(f) All the outstanding shares of capital stock of each subsidiary of the Guarantor
have been duly and validly authorized and issued and are fully paid and non-assessable
(except as provided in statutes pursuant to which depository institution subsidiaries are
subject), and, except as otherwise set forth in the Pricing Prospectus, the Guarantor owns
(i) all of the voting capital stock of Regions Bank (except for directors’ qualifying
shares, if any), and (ii) a controlling majority of the outstanding shares of voting
capital stock of each of its other Significant Subsidiaries are owned by the Guarantor, in
each case either directly or through wholly owned subsidiaries, free and clear of any
perfected security interest or any other security interests, claims, liens or encumbrances.
(g) Each of the Administrative Trustees is an employee of or affiliated with the
Guarantor and, at the Closing Date, the Declaration of Trust will have been duly executed
and delivered by each Administrative Trustee and will constitute a valid and legally
binding instrument of each Administrative Trustee, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfer and conveyance), reorganization and
other laws of general applicability relating to or affecting creditors’ rights and to
general equity principles (regardless of whether enforcement is considered in a proceeding
at law or equity).
(h) The Junior Subordinated Notes have been duly authorized, and, when issued,
delivered, authenticated and paid for at the Closing Date as contemplated by the Pricing
Prospectus, will constitute valid and legally binding obligations of the Guarantor entitled
to the benefits provided by the Indenture, subject, as to enforcement, to bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent transfer and
conveyance), reorganization and other laws of general applicability relating to or
affecting creditors’ rights and to general equity principles (regardless of whether
enforcement is considered in a proceeding at law or equity).
(i) The Indenture has been duly authorized and, at the Closing Date, the Indenture,
the Guarantee Agreement and the Declaration of Trust each will be
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duly qualified under the Trust Indenture Act and, assuming due authorization,
execution and delivery by the Guarantee Trustee, Property Trustee and Delaware Trustee, as
applicable, will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfer and conveyance),
reorganization and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles (regardless of whether enforcement is considered in
a proceeding at law or equity); and the Junior Subordinated Notes and the Indenture will
conform in all material respects to the descriptions thereof in the Pricing Disclosure
Package and the Prospectus.
(j) Each of the Declaration of Trust and the Guarantee Agreement (collectively, the
“Other Guarantor Transaction Agreements” and, together with this Agreement, the Indenture
and the Junior Subordinated Notes, the “Guarantor Transaction Agreements”) has been duly
authorized by the Guarantor and, when executed and delivered at the Closing Date, will
constitute a valid and legally binding instrument of the Guarantor, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfer and conveyance),
reorganization and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles (regardless of whether enforcement is considered in
a proceeding at law or equity).
(k) This Agreement has been duly authorized, executed and delivered by the Guarantor.
(l) The statements set forth in the Pricing Prospectus and the Prospectus under the
captions “The Trust,” “Description of the Trust Preferred Securities,” “Description of the
Junior Subordinated Notes,” “Replacement Capital Covenant”, “Regions Trusts,” “Description
of Preferred Securities of the Trusts,” “Description of Trust Guarantees,” and “Effect of
Obligations under the Subordinated Debt Securities and the Trust Guarantees,” insofar as
they are descriptions of contracts, agreements or other legal documents or describe Federal
statutes, rules and regulations, and under the caption “Underwriting,” insofar as they
purport to describe the provisions of the documents referred to therein, constitute an
accurate summary of the matters set forth therein in all material respects; the statements
set forth in the Pricing Prospectus and the Prospectus under the caption “Certain United
States Federal Income Tax Consequences” and “ERISA Considerations,” insofar as they purport
to constitute a summary of matters of U.S. federal income tax law or the U.S. Employee
Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions
with respect thereto, constitute an accurate summary of the matters set forth therein in
all material respects.
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(m) The Guarantor is not, and after giving effect to the offering and sale of the
Trust Preferred Securities and the application of the proceeds thereof will not be, an
“investment company,” as such term is defined in the Investment Company Act.
(n) 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 Securities Act and the Trust Indenture
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.
(o) Neither the execution, delivery and performance of the Guarantor Transaction
Agreements nor the consummation of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation or imposition of any lien, charge or encumbrance upon any property
or assets of the Guarantor or any of its Significant Subsidiaries pursuant to, (i) the
certificate of incorporation or other charter document or by-laws of the Guarantor 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 Guarantor or any of its Significant
Subsidiaries is 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 Guarantor or
any of its Significant Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Guarantor 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 (o),
reasonably be expected to result in a Material Adverse Effect.
(p) The consolidated historical financial statements and schedules of the Guarantor
and its consolidated subsidiaries incorporated by reference in the Pricing Prospectus and
the Registration Statement present fairly in all material respects the financial condition,
results of operations and cash flows of the Guarantor and its consolidated subsidiaries as
of the dates and for the periods indicated, comply as to form with the applicable
accounting requirements of the Securities Act and the rules and regulations of the
Commission thereunder 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 therein). The selected financial data set forth under
the caption “Summary Information–Selected Financial Data” in the Pricing
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Prospectus fairly present, on the basis stated in the Pricing Prospectus, the
information included therein.
(q) Except as disclosed in the Pricing Prospectus, no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the
Guarantor or any of its Significant Subsidiaries or its or their property is pending or, to
the best knowledge of the Guarantor, threatened that (i) would reasonably be expected to
have a material adverse effect on the performance of the Guarantor Transaction Agreements
or the consummation of any of the transactions contemplated thereby or (ii) would
reasonably be expected to result in a Material Adverse Effect.
(r) Neither the Guarantor 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 Guarantor 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 Guarantor 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 to
the extent that any of the foregoing is due and payable, except for any that is currently
being contested in good faith or as would not reasonably be expected to result in a
Material Adverse Effect.
(t) The Guarantor 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 Guarantor or any of its Significant
Subsidiaries or their respective businesses, assets, employees, officers and directors are
in full force and effect; the Guarantor and its Significant Subsidiaries are in compliance
with the terms of such policies and instruments in all material respects; and there are no
claims by the Guarantor or any of its Significant Subsidiaries under any such policy or
instrument as to which any insurance company is denying liability; neither the Guarantor
nor any such subsidiary has been refused any insurance coverage sought or applied for; and
neither the Guarantor 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
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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 Guarantor is currently prohibited, directly or indirectly,
from paying any dividends to the Guarantor, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Guarantor any loans or advances to such
subsidiary from the Guarantor or from transferring any of such subsidiary’s property or
assets to the Guarantor or any other subsidiary of the Guarantor except as described in or
contemplated by the Pricing Prospectus and applicable banking laws and regulations.
(v) The Guarantor 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 except those the
failure of which to possess would not reasonably be expected to result in a Material
Adverse Effect, and neither the Guarantor 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) Ernst & Young LLP, independent registered public accounting firm, who have audited
consolidated financial statements of the Guarantor and its consolidated subsidiaries, and
delivered their report with respect to audited consolidated financial statements included
in the Prospectus, is an independent registered public accounting firm as required by the
Securities Act and the rules and regulations of the Commission thereunder.
(x) The Guarantor maintains a system of internal control over financial reporting (as
such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Guarantor’s principal
executive officer and principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally accepted
accounting principles. The Guarantor’s internal control over financial reporting is
effective and the Guarantor is not aware of any material weaknesses in its internal control
over financial reporting.
(y) Since the date of the latest audited financial statements included or incorporated
by reference in the Pricing Prospectus, there has been no change in the Guarantor’s
internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Guarantor’s internal control over financial reporting.
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(z) The Guarantor maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act; such disclosure controls and procedures have been designed to ensure that
material information relating to the Guarantor and its subsidiaries is made known to the
Guarantor’s principal executive officer and principal financial officer by others within
those entities; and such disclosure controls and procedures are effective.
(aa) The Guarantor and its Significant Subsidiaries are to their knowledge (i) in
substantial compliance with applicable 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 substantial compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses
and (iii) have not received any unresolved notice of any actual or potential liability for
the investigation or remediation of any unpermitted 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.
(bb) Except as disclosed in the Registration Statement and the Pricing Prospectus, the
Guarantor does not have any material lending or other material relationship with any bank
or lending affiliate of any of the Underwriters.
(cc) The Guarantor and each of its subsidiaries are in compliance with all laws
administered by the Board of Governors of the Federal Reserve System (the “Federal Reserve
Board”), the Federal Deposit Insurance Corporation (“FDIC”), the Alabama Department of
Banking (the “Department”) and any other federal or state bank regulatory authorities
(together with the Federal Reserve Board, the FDIC and the Department, the “Bank Regulatory
Authorities”) with jurisdiction over the Guarantor and its subsidiaries, except for such
failures to be in compliance as would not reasonably be expected to result in a Material
Adverse Effect. The deposit accounts of each bank subsidiary of the Guarantor are insured
up to applicable limits by the FDIC and no proceedings for the termination or revocation of
such insurance are pending or, to the knowledge of the Guarantor, threatened. Neither the
Guarantor nor any of its Significant Subsidiaries is a party to or otherwise subject to any
consent decree, memorandum of understanding, written commitment or other supervisory
agreement with any of the Bank Regulatory Authorities or any other governmental agency or
authority, nor have the Guarantor or any of its Significant Subsidiaries been advised by
any of the Bank Regulatory Authorities or any other governmental agency or authority that
it is contemplating issuing or requesting any of the foregoing.
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(dd) To the Guarantor’s knowledge, the operations of the Guarantor and its
subsidiaries are currently in compliance with applicable financial record keeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all United States jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency in the United States (collectively, the
“Money Laundering Laws”), except where the failure to so comply would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect; and no
formal action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Guarantor or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the Guarantor, threatened
that would reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(ee) Except as previously disclosed to the Representative, neither the Guarantor nor
any of its affiliates does business with the government of, or any person located in, any
country, or with any other person, targeted by any of the economic sanctions of the United
States administered by the United States Treasury Department’s Office of Foreign Assets
Control; the Guarantor is not controlled (within the meaning of the regulations
promulgating such sanctions or the laws authorizing such promulgation) by any such
government or person; and the proceeds from the offering will not be used to fund any
operations in, finance any investments or activities in or make any payments to, any
country, or to make any payments to any person, targeted by any of such sanctions.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Guarantor and the Trust agree that the Trust
will sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Trust, at the purchase price set forth in Schedule II, the number of Trust Preferred
Securities set forth opposite such Underwriter’s name in Schedule I.
As compensation to the Underwriters for their commitments hereunder, and in view of the fact
that the proceeds from the sale of the Trust Preferred Securities will be used by the Trust to
purchase the Junior Subordinated Notes, the Guarantor on the Closing Date will pay by wire transfer
of immediately available funds to Xxxxxxx, Xxxxx & Co., for the accounts of the several
Underwriters, the amount per Trust Preferred Security set forth in Schedule II in respect of the
Trust Preferred Securities to be delivered by the Trust hereunder on the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Trust Preferred Securities
shall be made at the office, on the date and at the time specified in Schedule II (such time and
date are herein called the “Time of Delivery”), which date and time may be postponed by agreement
between the Underwriters, the Trust and the
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Guarantor (such date and time of delivery of and payment for the Trust Preferred Securities
being herein called the “Closing Date”). The Trust Preferred Securities to be purchased by each
Underwriter hereunder will be represented by one or more global certificates representing the Trust
Preferred Securities that will be deposited by or on behalf of the Trust with The Depository Trust
Company (“DTC”) or its designated custodian. Delivery of the Trust Preferred Securities shall be
made by causing DTC to credit the Trust Preferred Securities to the account of Xxxxxxx, Sachs & Co.
at DTC, for the respective accounts of the several Underwriters at DTC, against payment by the
several Underwriters through Xxxxxxx, Xxxxx & Co. of the purchase price thereof to or upon the
order of the Trust in the manner and type of funds specified in Schedule II.
The Trust and the Guarantor agree to have the certificates representing the Trust Preferred
Securities available for checking in New York City at the Closing Location specified in Schedule
II, on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Trust Preferred Securities for sale as set forth in the Pricing Disclosure Package and
the Prospectus.
5. Agreements. (A) General. The Trust and the Guarantor jointly and
severally agree with the several Underwriters as follows (except that the agreements in paragraphs
(e), (g), (h) and (i) of this Section 5(A) are made only by the Guarantor and not by the Trust):
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of
business on the second business day following the date of this Agreement; to make no
further amendment or any supplement to the Registration Statement, the Basic Prospectus or
the Prospectus prior to the Time of Delivery that shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it receives notice thereof,
of the time when, prior to the date that is 91 days following the date hereof, any
amendment to the Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to furnish you with copies
thereof; to prepare a final term sheet, containing solely a description of the Trust
Preferred Securities and the Junior Subordinated Notes, in a form set forth in Schedule III
hereto and to file such term sheet pursuant to Rule 433(d) under the Securities Act within
the time required by such Rule; to file promptly all other material required to be filed by
the Trust or the Guarantor with the Commission pursuant to Rule 433(d) under the Securities
Act; to file promptly all reports and any definitive proxy or information statements
required to be filed by the Guarantor and (to the extent not exempt under Rule 12h-5 under
the Exchange Act) the Trust with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and for so long as the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act) is required
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in connection with the offering and sale of the Trust Preferred Securities; to advise
you, promptly after either the Trust or the Guarantor receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with the Commission,
of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus in respect of the
Trust Preferred Securities, of the suspension of the qualification of the Trust Preferred
Securities or the Junior Subordinated Notes for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary Prospectus or
other prospectus in respect of the Trust Preferred Securities or suspending any such
qualification, to promptly use their best efforts to obtain the withdrawal of such order;
and in the event of any such issuance of a notice of objection, promptly to take such steps
including, without limitation, amending the Registration Statement or filing a new
registration statement, at the Guarantor’s own expense, as may be necessary to permit
offers and sales of the Trust Preferred Securities by the Underwriters (references herein
to the Registration Statement shall include any such amendment or new registration
statement).
(b) If required by Rule 430B(h) under the Securities Act, to prepare a form of
prospectus in a form approved by you and to file such form of prospectus pursuant to Rule
424(b) under the Securities Act not later than may be required by Rule 424(b) under the
Securities Act; and to make no further amendment or supplement to such form of prospectus
which shall be disapproved by you promptly after reasonable notice thereof.
(c) Promptly from time to time to take such action as the Underwriters may reasonably
request to qualify the Trust Preferred Securities and the Junior Subordinated Notes for
offering and sale under the securities laws of such jurisdictions as the Underwriters may
request and to comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Trust Preferred Securities and the Junior Subordinated Notes, provided that
in connection therewith the Guarantor shall not be required to qualify as a foreign
corporation where it is not now so qualified or to file a general consent to service of
process in any jurisdiction where it is not now so subject.
(d) Prior to 10:00 A.M., New York City time, on the New York business day next
succeeding the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in
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New York City in such quantities as they may reasonably request, and, if the delivery
of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act) is required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or sale of the Trust
Preferred Securities or Junior Subordinated Notes and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they
were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
under the Securities Act) is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the Prospectus in order to
comply with the Securities Act, the Exchange Act or the Trust Indenture Act, to notify you
and upon your request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written and electronic copies as
you may from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus that will correct such statement or omission or effect such compliance; and
in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Securities Act) in connection with sales of any of the
Trust Preferred Securities or Junior Subordinated Notes at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many written and electronic
copies as you may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act.
(e) To make generally available to its securityholders and to the Underwriters as soon
as practicable, but in any event not later than sixteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement (which need not be audited) of the Guarantor and its subsidiaries,
complying with Section 11(a) of the Securities Act and the rules and regulations thereunder
(including, at the option of the Guarantor, Rule 158).
(f) During the period beginning from the date of the Prospectus, and continuing to and
including the date 30 days after the date of the Prospectus or such earlier time as you may
notify the Guarantor, not to offer, sell, contract to sell, or otherwise dispose of,
directly or indirectly, any Trust Preferred Securities (except for (x) the Trust Preferred
Securities offered hereby and (y) any securities to be offered in an exchange offer or
similar transaction in respect of securities outstanding on the date hereof, in each case
including any guarantee of such securities), any other beneficial interests in the assets
of the Trust (other than the Trust Common Securities) or any Junior Subordinated Notes, any
securities (including any security issued by another trust or other limited purpose
vehicle)
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that are substantially similar to the Trust Preferred Securities, the Junior
Subordinated Notes, the Guarantee, or any securities that are convertible into or
exchangeable for or that represent the right to receive any such substantially similar
securities of either the Trust, a similar trust or the Guarantor, except with your prior
written consent.
(g) To use the net proceeds received from the sale of the Trust Preferred Securities
or Junior Subordinated Notes, as the case may be, in the manner specified in the Pricing
Prospectus under the caption “Use of Proceeds.”
(h) The Guarantor will issue the Guarantee concurrently with the issue and sale of the
Trust Preferred Securities as contemplated herein.
(i) To pay all expenses incident to the performance of each of its and the Trust’s
obligations under this Agreement, and will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of its counsel and accountants in connection with the
registration of the Trust Preferred Securities and the Junior Subordinated Notes under the
Securities Act and all other expenses in connection with the preparation, printing,
reproduction and filing of the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering, purchase,
sale and delivery of the Trust Preferred Securities and the Junior Subordinated Notes;
(iii) all expenses in connection with the qualification of the Trust Preferred Securities
and the Junior Subordinated Notes for offering and sale under state securities laws,
including the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (iv) the fees charged by
securities rating services for rating the Trust Preferred Securities; (v) filing fees
incident to, and the reasonable fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Trust Preferred Securities and the Junior Subordinated
Notes; (vi) the cost of preparing the Trust Preferred Securities and the Junior
Subordinated Notes; (vii) the costs and charges of any transfer agent or registrar or
dividend distributing agent; and (viii) all other costs and expenses incident to the
performance of its and the Trust’s obligations hereunder that are not otherwise
specifically provided for in this paragraph. It is understood, however, that, except as
provided in this paragraph, and Sections 7 and 9 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer taxes on resale
of any of the Trust Preferred Securities by them, the cost of preparing and distributing
any term sheet prepared by any Underwriter, and any advertising expenses connected with any
offers they may make.
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(B) Free Writing Prospectuses.
(a) (i) Each of the Guarantor and the Trust represents and agrees that, other than
the final term sheet prepared and filed pursuant to Section 5(A)(a) hereof, without the
prior consent of the Representative, it has not made and will not make any offer relating
to the Trust Preferred Securities or the Junior Subordinated Notes that would constitute a
“free writing prospectus” as defined in Rule 405 required to be filed with the Commission;
(ii) Each Underwriter represents and agrees that, without the prior consent of the
Guarantor and the Representative, other than one or more term sheets relating to the Trust
Preferred Securities and the Junior Subordinated Notes containing customary information and
conveyed to purchasers of the Trust Preferred Securities, it has not made and will not make
any offer relating to the Trust Preferred Securities that would constitute a free writing
prospectus; and
(iii) Any such free writing prospectus the use of which requires consent under clauses
(i) and (ii) above and has been consented to by the Guarantor and the Representative
(including the final term sheet prepared and filed pursuant to Section 5(A)(a) hereof) is
listed on Schedule II(a).
(b) Each of the Guarantor and the Trust has complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or retention where required and
legending.
(c) The Guarantor agrees that if at any time following the issuance of an Issuer Free
Writing Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration Statement, the
Pricing Prospectus or the Prospectus or would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances then prevailing, not misleading, the Guarantor will give
prompt notice thereof to the Representative and, if requested by the Representative, will
prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or
other document that will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
information furnished in writing to the Guarantor by an Underwriter through the
Representative expressly for use therein.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Trust Preferred Securities shall be subject to the accuracy of the
representations and warranties on the part of each of the Guarantor and the Trust contained herein
as of the date hereof and the Closing Date, to the accuracy of the statements of the Guarantor and
the Trust made in any certificates pursuant to the
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provisions hereof, to the performance by each of the Guarantor and the Trust of its
obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Securities Act within the applicable time period prescribed for such filing by
the rules and regulations under the Securities Act and in accordance with Section 5(A)(a)
hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material
required to be filed by the Guarantor or the Trust pursuant to Rule 433(d) under the
Securities Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the Commission; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus
shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your reasonable
satisfaction.
(b) Xxxxxx & Bird LLP, counsel for the Guarantor, shall have furnished to the
Underwriters an opinion, dated the Closing Date, to the effect that:
(i) The Guarantor is validly existing as a corporation in good standing under
the laws of the State of Delaware, and is duly registered as a bank holding company
and a financial holding company under the Bank Holding Company Act of 1956, as
amended, with corporate power and authority to own or lease its properties and
conduct its business as described in the Prospectus;
(ii) This Agreement has been duly authorized, executed and delivered by the
Guarantor and the Trust;
(iii) Each of the Declaration of Trust, the Indenture and the Guarantee
Agreement has been duly and validly authorized, executed and delivered by the
Guarantor and constitutes a valid and binding agreement of the Guarantor,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and conveyance and similar laws
affecting the rights and remedies of creditors generally, and the effects of
general principles of equity (regardless of whether enforcement is considered in a
proceeding at law or equity); and each of the Declaration of Trust, the Indenture
and the Guarantee Agreement has been duly qualified under the Trust Indenture Act;
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(iv) The issuance, execution and delivery of the Junior Subordinated Notes
have been duly and validly authorized by the Guarantor and, when authenticated by
the Issuer Trustee, executed, issued and delivered in the manner provided in the
Indenture will constitute valid and binding obligations of the Guarantor, entitled
to the benefits of the Indenture and enforceable against the Guarantor in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and conveyance and similar laws affecting the
rights and remedies of creditors generally, and the effects of general principles
of equity (regardless of whether enforcement is considered in a proceeding as law
or equity);
(v) The statements set forth in the Pricing Disclosure Package and the
Prospectus under the captions “The Trust, ” “Description of the Trust Preferred
Securities,” “Description of the Junior Subordinated Notes,” “Guarantee of the
Trust Preferred Securities,” “Replacement Capital Covenant,” “Regions Trusts,”
“Description of Debt Securities,” “Description of Preferred Securities of the
Trusts,” “Description of Trust Guarantees,” and “Effect of Obligations under the
Subordinated Debt Securities and the Trust Guarantees,” insofar as these statements
purport to describe the provisions of the documents referred to therein, constitute
an accurate summary of the matters set forth therein in all material respects;
(vi) The statements set forth in the Pricing Disclosure Package and the
Prospectus under the captions “Certain United States Federal Income Tax
Consequences” and “ERISA Considerations,” insofar as they purport to constitute
summaries of matters of U.S. federal income tax law and the U.S. Employee
Retirement Income Security Act of 1974 and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters set forth therein in
all material respects;
(vii) Neither the Trust nor the Guarantor is and, after giving effect to the
offering and sale of the Trust Preferred Securities and the Junior Subordinated
Notes and the application of the proceeds thereof, will be an “investment company,”
as such term is defined in the Investment Company Act;
(viii) The Registration Statement, the Prospectus and any further amendments
and supplements thereto, as applicable, made by the Trust or the Guarantor prior to
the Time of Delivery, excluding in each case the documents incorporated by
reference therein (other than the financial statements and related schedules and
other financial information contained therein or omitted therefrom and each Form
T-1, as to which such counsel need express no opinion) comply as to form in all
material respects with
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the requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations thereunder;
(ix) Although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration Statement,
the Pricing Prospectus or the Prospectus, except for those referred to in the
opinion in subsections (v) and (vi) of this Section 6(b), they have no reason to
believe (i) that any part of the Registration Statement or any further amendment
thereto made by the Guarantor prior to the Time of Delivery (other than the
financial statements and related schedules therein and other financial information
contained therein or omitted therefrom and each Form T-1, as to which such counsel
need express no opinion), when such part or amendment became effective, contained
an untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
(ii) that the Pricing Disclosure Package, as of the Applicable Time, contained any
untrue statement of a material fact or omitted to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; or (iii) that, as of its date and as of the
Time of Delivery, the Prospectus or any further amendment or supplement thereto
made by the Guarantor prior to the Time of Delivery (other than the financial
statements and related schedules therein and other financial information contained
therein or omitted therefrom and each Form T-1, as to which such counsel need
express no opinion) contained or contains an 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;
(c) The Guarantor shall have furnished to the Underwriters an opinion, dated the
Closing Date, of Xxxx X. Xxxxxx, Assistant General Counsel of the Guarantor, to the effect
that:
(i) The Guarantor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus;
(ii) The Guarantor has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as
to require such qualification or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction (except in any
case in which the failure so to file would not reasonably be expected to have a
Material Adverse Effect);
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(iii) Each Significant Subsidiary of the Guarantor has been duly incorporated
and is validly existing as a corporation or bank, as applicable, in good standing
under the laws of its jurisdiction of incorporation; and all of the issued shares
of capital stock of each Significant Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except for directors
qualifying shares and as otherwise set forth in the Prospectus), are owned directly
or indirectly by the Guarantor free and clear of all liens, encumbrances, equities
or claims (such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Guarantor or its Significant Subsidiaries,
provided that such counsel shall state that they believe that both the
Guarantor and the Underwriters are justified in relying upon such opinions and
certificates);
(iv) To such counsel’s knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which the
Guarantor or any of its Significant Subsidiaries or the Trust is a party or of
which any property of the Guarantor or any of its Significant Subsidiaries or the
Trust is the subject which is reasonably likely to be adversely determined against
the Guarantor or any of its subsidiaries or the Trust and, if determined adversely
to the Guarantor or any of its subsidiaries or the Trust, would individually or in
the aggregate have a material adverse effect on the current or future consolidated
financial position, stockholders’ equity or results of operations of the Guarantor
and its Significant Subsidiaries, taken as a whole, or of the Trust; and, to such
counsel’s knowledge, no such proceedings are threatened by governmental
authorities;
(v) The documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Guarantor prior to the Time of Delivery
(other than the financial statements and related schedules therein, 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 Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder; and they
have no reason to believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act, an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or, in
the case of other documents which were filed under the Securities Act or the
Exchange Act with the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in the
light
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of the circumstances under which they were made when such documents were so
filed, not misleading;
(vi) To such counsel’s knowledge, there is no amendment to the Registration
Statement required to be filed and there are no contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or required to be
described in the Registration Statement, the Basic Prospectus or the Prospectus
which are not filed or incorporated by reference or described as required;
(vii) The execution and delivery of this Agreement, the Declaration of Trust,
the Indenture and the Guarantee Agreement, the issuance and sale of the Junior
Subordinated Notes, the Trust Preferred Securities and the Trust Common Securities
and the consummation of the transactions and performance of the obligations herein
and therein contemplated will not conflict with or result in a breach or violation
of (A) any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which the Guarantor, the Trust, or any Significant
Subsidiary of the Guarantor is a party or by which the Guarantor, the Trust, or any
Significant Subsidiary of the Guarantor is bound or to which any of the property or
assets of the Guarantor, the Trust, or any Significant Subsidiary of the Guarantor
is subject, (B) the Restated Certificate of Incorporation, as amended, or By-laws
of the Guarantor or the organizational documents of the Trust or any Significant
Subsidiary of the Guarantor, or (C) any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body having
jurisdiction over the Guarantor, the Trust or any Significant Subsidiary of the
Guarantor or any of their properties, except in the case of (A) and (C), such
violations or default which would either individually or in the aggregate with all
other violations and defaults referred to in this paragraph (if any), reasonably be
expected to result in a Material Adverse Effect; and
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required for
the issue and sale of the Trust Preferred Securities or the Junior Subordinated
Notes or the consummation by the Guarantor and the Trust of the transactions
contemplated by the Underwriting Agreement, except such as have been obtained under
the Securities Act and such consents, approvals, authorizations, or registrations
as may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Trust Preferred Securities by the Underwriters;
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(d) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Guarantor and the
Trust, shall have furnished to the Underwriters an opinion, dated the Closing Date, to the
effect that:
(i) The Trust has been duly created and is validly existing and in good
standing under the Delaware Statutory Trust Act and all filings required under the
laws of the State of Delaware with respect to the creation and valid existence of
the Trust as a statutory trust have been made;
(ii) Under the Delaware Statutory Trust Act and the Declaration of Trust, the
Trust has the trust power and authority to own its property and conduct its
business, all as described in the Prospectus;
(iii) The provisions of the Declaration of Trust, including the terms of the
Trust Preferred Securities, are permitted under the Delaware Statutory Trust Act
and the Declaration of Trust constitutes a valid and binding obligation of the
Guarantor and the Trustees, enforceable against the Guarantor and the Trustees in
accordance with its terms, subject, as to enforcement, to the effect upon the
Declaration of Trust of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at law),
and (iii) applicable public policy on the enforceability of provisions relating to
indemnification or contribution;
(iv) Under the Delaware Statutory Trust Act and the Declaration of Trust, the
Trust has the trust power and authority to (x) execute and deliver this Agreement
and the Expense Agreement and to perform its obligations under this Agreement and
the Expense Agreement, and (y) issue and perform its obligations under the Trust
Preferred Securities and the Trust Common Securities;
(v) Under the Delaware Statutory Trust Act and the Declaration of Trust, (A)
the execution and delivery by the Trust of this Agreement and the Expense Agreement
and the performance by the Trust of its obligations hereunder and thereunder have
been duly authorized by all necessary trust action on the part of the Trust; and
(B) the Guarantor is authorized to execute and deliver this Agreement on behalf of
the Trust;
(vi) Under the Delaware Statutory Trust Act, the form of certificate attached
to the Declaration of Trust to represent the Trust Preferred Securities is an
appropriate form of certificate to evidence ownership of the Trust Preferred
Securities. The Trust Preferred
-25-
Securities have been duly authorized by the Declaration of Trust and, when
delivered to and paid for by the Underwriters, in accordance with this Agreement,
will be validly issued and fully paid and non-assessable beneficial interests in
the Trust. The holders of the Trust Preferred Securities are entitled to the
benefits provided by the Declaration of Trust (subject to the terms of the
Declaration of Trust); and the holders of the Trust Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware, provided that
such counsel may note that the holders of the Trust Preferred Securities and of the
Trust Common Securities may be obligated, pursuant to the Declaration of Trust, to
(a) provide indemnity and/or security in connection with, and pay taxes or
governmental charges arising from, transfers or exchanges of Trust Preferred
Security certificates and the issuance of replacement of Trust Preferred Security
certificates, and (b) provide security and indemnity in connection with requests of
or directions to the Property Trustee (as defined in the Declaration of Trust) to
exercise its rights and remedies under the Declaration of Trust;
(vii) The Trust Common Securities have been duly authorized by the Declaration
of Trust and when issued and delivered by the Trust to the Guarantor against
payment therefor described in the Declaration of Trust, will be validly issued and
fully paid (subject to the qualifications described in the proviso to clause (vi)
next above) beneficial interests in the Trust. The Guarantor, as holder of the
Trust Common Securities, will be entitled to the benefits of the Declaration of
Trust;
(viii) Under the Delaware Statutory Trust Act and the Declaration of Trust,
the issuance of the Trust Preferred Securities and the Trust Common Securities is
not subject to preemptive rights;
(ix) The issuance and sale by the Trust of the Trust Preferred Securities and
the Trust Common Securities, the execution, delivery and performance by the Trust
of this Agreement and the Expense Agreement, the consummation by the Trust of the
transactions contemplated hereby and thereby and compliance by the Trust with its
obligations hereunder and thereunder do not violate (A) any of the provisions of
the Certificate of Trust of the Trust or the Declaration of Trust, or (B) any
applicable Delaware law or administrative regulation;
(x) No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely in connection with the issuance and sale of the Trust Preferred
Securities and the Trust Common
-26-
Securities or the execution, delivery and performance by the Trust of this
Agreement or the Expense Agreement. In rendering the opinion expressed in this
paragraph (x), such counsel need express no opinion concerning the securities laws
of the State of Delaware; and
(xi) Assuming that the Trust derives no income from or connected with services
provided within the State of Delaware and has no assets, activities (other than
maintaining the Delaware Trustee and the filing of documents with the Secretary of
State of the State of Delaware) or employees in the State of Delaware and assuming
that the Trust is treated as a grantor trust or as an association not taxable as a
corporation for federal income tax purposes, the holders of Trust Preferred
Securities (other than those holders who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by the State of Delaware
solely as a result of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
(e) The Underwriters shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with respect to such
matters as the Underwriters may reasonably require. Xxxxxxxx & Xxxxxxxx LLP may rely as to
those matters that relate to the Indenture Trustee, the Guarantee Trustee or the Property
Trustee upon the certificate or certificates of such entities.
(f) On the date of the Prospectus at a time prior to the execution of this Agreement,
at 9:30 A.M., New York City time, on the effective date of any post-effective amendment to
the Registration Statement filed subsequent to the date of this Agreement and also at the
Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated
the respective dates of delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a form of letter to be
delivered on the effective date of any post-effective amendment to the Registration
Statement, and as of the Time of Delivery is attached as Annex I(b) hereto).
(g) Neither the Guarantor nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements included or incorporated by reference in
the Pricing Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or contemplated
in the Pricing Prospectus, and (ii) since the respective dates as of which information is
given in the Pricing Prospectus there shall not have been any change in the capital stock
or long-term debt of the Guarantor or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the financial position,
-27-
stockholders’ equity or results of operations of the Guarantor and its subsidiaries,
otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of the Representative
so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Trust Preferred Securities on the terms and in the
manner contemplated in the Prospectus.
(h) The Guarantor shall have complied with the provisions of the first sentence of
Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day
next succeeding the date of this Agreement.
(i) On or after the Applicable Time, the Trust Preferred Securities shall have been
accorded a rating of not less than “BBB+” by Standard & Poor’s Ratings Service, not less
than “A2” by Xxxxx’x Investors Service, Inc. and not less than “A” by Fitch Ratings.
(j) On or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Guarantor’s debt securities or preferred stock by any “nationally
recognized statistical rating organization,” as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Guarantor’s debt securities or preferred stock.
(k) On or after the Applicable Time there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a suspension or material limitation in trading in the
Guarantor’s securities on the New York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal, New York, or Alabama authorities
or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or war or (v)
the occurrence of any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the
Trust Preferred Securities on the terms and in the manner contemplated in the Prospectus.
(l) The Guarantor and the Trust shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company and trustees of the Trust
satisfactory to you as to the accuracy of the representations and warranties of the Company
and the Trust herein at and as of such time, as to the performance by the Guarantor and the
Trust of all of their
-28-
respective obligations hereunder to be performed at or prior to such time, as to the
matters set forth in subsections (a) and (g) of this Section and as to such other matters
as you may reasonably request.
7. Indemnification and Contribution.
(a) The Guarantor and the Trust will, jointly and severally, indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or
required to be filed pursuant to Rule 433(d) under the Securities Act, or any Pricing
Disclosure Package, 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 will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that neither the Guarantor nor the Trust shall be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus, or any Pricing Disclosure Package in reliance upon and in conformity
with written information furnished to the Guarantor or the Trust by any Underwriter through
the Representative expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless each of the Guarantor and the
Trust against any losses, claims, damages or liabilities to which the Guarantor or the
Trust may become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus, or any Pricing Disclosure Package or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing
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Prospectus or the Prospectus, or any such amendment or supplement thereto or any
Issuer Free Writing Prospectus, or any Pricing Disclosure Package in reliance upon and in
conformity with written information furnished to the Guarantor or the Trust by such
Underwriter through the Representative expressly for use therein; and will reimburse the
Guarantor or the Trust for any legal or other expenses reasonably incurred by the Guarantor
or the Trust, as appropriate, in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection 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. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the indemnified party, effect
the settlement or compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as
-30-
is appropriate to reflect the relative benefits received by the Guarantor and the
Trust on the one hand and the Underwriters on the other from the offering of the Trust
Preferred Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall contribute
to such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
Guarantor or the Trust on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Guarantor or the Trust on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Guarantor or the
Trust bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Guarantor or the Trust on
the one hand or the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.
The Guarantor and the Trust on the one hand and the Underwriters on the other agree that it
would not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Trust Preferred
Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting obligations and not
joint.
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(e) The obligations of the Guarantor under this Section 7 shall be in addition to any
liability which the Guarantor or the Trust may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Securities Act; and the obligations of the Underwriters under this Section 7
shall be in addition to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and director of the
Guarantor and the Trust and to each person, if any, who controls the Guarantor within the
meaning of the Securities Act.
8. Underwriter Default. (a) If any Underwriter shall default in its obligation to
purchase the Trust Preferred Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such Trust Preferred
Securities on the terms contained herein. If within thirty-six hours after such default by any
Underwriter, you do not arrange for the purchase of such Trust Preferred Securities, then the
Guarantor shall be entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representative to purchase such Trust Preferred
Securities on such terms. In the event that, within the respective prescribed periods, you notify
the Guarantor that you have so arranged for the purchase of such Trust Preferred Securities, or the
Guarantor notifies you that it has so arranged for the purchase of such Trust Preferred Securities,
you or the Guarantor shall have the right to postpone the Closing Date for a period of not more
than seven days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or arrangements, and the
Guarantor agrees to file promptly any amendments or supplements to the Registration Statement or
the Prospectus that in your opinion may thereby be made necessary. The term “Underwriter” as used
in this Agreement shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such Trust Preferred
Securities.
(b) If, after giving effect to any arrangements for the purchase of the Trust Preferred
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor as provided in
paragraph (a) above, the aggregate principal amount of such Trust Preferred Securities which
remains unpurchased does not exceed one eleventh of the aggregate principal amount of all the Trust
Preferred Securities, then the Guarantor shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Trust Preferred Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Trust Preferred Securities which such
Underwriter agreed to purchase hereunder) of the Trust Preferred Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
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(c) If, after giving effect to any arrangements for the purchase of the Trust Preferred
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor as provided in
paragraph (a) above, the aggregate principal amount of Trust Preferred Securities which remains
unpurchased exceeds one eleventh of the aggregate principal amount of all the Trust Preferred
Securities, or if the Guarantor shall not exercise the right described in paragraph (b) above to
require non-defaulting Underwriters to purchase Trust Preferred Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Guarantor, except for the indemnity and
contribution agreements in Section 7; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
9. Expenses on Termination. If for any reason the Trust Preferred Securities are not
delivered by or on behalf of the Guarantor as provided herein other than because of a termination
of this Agreement pursuant to Section 8, the Guarantor will reimburse the Underwriters through you
for all reasonable out-of-pocket expenses approved in writing by you, including reasonable fees and
disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Trust Preferred Securities but the Guarantor shall then be under
no further liability to any Underwriter except as provided in Section 5A(i) and Section 7. If this
Agreement shall be terminated pursuant to Section 8 hereof, the Guarantor and the Trust shall not
then be under any liability to any Underwriter with respect to the Trust Preferred Securities,
except as provided in Sections 5A(i) and 7 hereof.
10. Time of the Essence. Time shall be of the essence of this Agreement. As used
herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C.
is open for business.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Guarantor or its officers, of
the Trust 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, the
Guarantor or the Trust or any of the controlling persons referred to in Section 7(e) hereof, and
will survive delivery of and payment for the Trust Preferred Securities. The provisions of
Sections 5(A)(i) and 7 hereof shall survive the termination or cancellation of this Agreement.
12. Arm’s-Length Terms. The Trust and the Guarantor acknowledge and agree that (i)
the purchase and sale of the Trust Preferred Securities pursuant to this Agreement is an
arm’s-length commercial transaction between the Trust and the Guarantor, on the one hand, and the
several Underwriters, on the other, (ii) in connection therewith and with the process leading to
such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of
the Trust or the Guarantor; (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Trust or the Guarantor with respect to the offering contemplated
hereby or the process leading
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thereto (irrespective of whether such Underwriter has advised or is currently advising the
Trust or the Guarantor on other matters) or any other obligation to the Trust or the Guarantor
except the obligations expressly set forth in this Agreement and (iv) the Trust and the Guarantor
have consulted their own legal and financial advisors to the extent they deemed appropriate. The
Trust and the Guarantor each agree that it will not claim that the Underwriters, or any of them,
has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the
Trust or the Guarantor, in connection with such transaction or the process leading thereto.
13. Prior Agreements. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Guarantor and the Underwriters, or the Trust
and the Underwriters, or the Guarantor or the Trust and any of the Underwriters, with respect to
the subject matter hereof.
14. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, heirs, executors, and administrators, and the
officers and directors and controlling persons referred to in Section 7 hereof, and no other person
will have any right or obligation hereunder.
15. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York.
16. Waiver of Jury Trial. The Guarantor, the Trust and each of the Underwriters
hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
17. Counterparts; Notices. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together shall constitute one
and the same instrument.
All notices hereunder shall be in writing or by telegram if promptly confirmed in writing, and
if to the Underwriters shall be sufficient in all respects if delivered or sent by mail, telex or
facsimile transmission to the address of Xxxxxxx, Xxxxx & Co., as set forth in Schedule II hereto;
and if to the Guarantor or the Trust shall be sufficient in all respects if delivered or sent by
mail, telex or facsimile transmission to its address set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to an Underwriter pursuant
to Section 7(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Guarantor by the Underwriters upon request.
18. Disclosure of Tax Treatment. Notwithstanding anything herein to the contrary, the
Guarantor and the Trust are authorized to disclose to any persons the U.S. federal and state income
tax treatment and tax structure of the potential transaction
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and all materials of any kind (including tax opinions and other tax analyses) provided to the
Guarantor and the Trust relating to that treatment and structure, without the Underwriters imposing
any limitation of any kind. However, any information relating to the tax treatment and tax
structure shall remain confidential (and the foregoing sentence shall not apply) to the extent
necessary to enable any person to comply with securities laws. For this purpose, “tax structure”
is limited to any facts that may be relevant to that treatment.
19. Action by Underwriters. Any action under this Agreement taken by the Underwriters
jointly will be binding upon all the Underwriters. In all dealings under this Agreement, the
Representative shall act on behalf of each of the Underwriters and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representative.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us four counterparts hereof, whereupon this letter and your acceptance shall represent a
binding agreement among the Trust, the Guarantor and the several Underwriters.
| Very truly yours, | ||||||
| REGIONS FINANCING TRUST II | ||||||
| By: REGIONS FINANCIAL | ||||||
| CORPORATION, as Depositor | ||||||
| By: | /s/ Xxxx Xxxx | |||||
| Name: Xxxx Xxxx | ||||||
| Title: Treasurer | ||||||
| REGIONS FINANCIAL CORPORATION | ||||||
| By: | /s/ Xxxx Xxxx | |||||
| Name: Xxxx Xxxx | ||||||
| Title: Treasurer | ||||||
Accepted as of the date hereof: |
||
/s/
Xxxxxxx, Sachs & Co. |
||
(Xxxxxxx, Xxxxx & Co.) |
||
On behalf of each of the Underwriters |
SCHEDULE I
| Number of | ||||
| Trust Preferred | ||||
| Securities | ||||
| to be | ||||
| Underwriters | Purchased | |||
Xxxxxxx, Sachs & Co. |
280,000 | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
140,000 | |||
Xxxxxx Xxxxxx & Company, Inc. |
140,000 | |||
Credit Suisse Securities (USA) LLC |
43,750 | |||
X.X. Xxxxxx Securities Inc. |
43,750 | |||
UBS Securities LLC |
43,750 | |||
Xxxxxx & Co. |
8,750 | |||
Total |
700,000 | |||
I-1
SCHEDULE II
Title of Securities:
6.625% Trust Preferred Securities of Regions Financing Trust II,
fully and unconditionally guaranteed, on a subordinated basis, by
Regions Financial Corporation (liquidation amount $1,000 per
security)
Number of Securities:
700,000
Initial Public Offering Price:
$999.72 per Trust Preferred Security plus accumulated
distributions, if any, from the date of original issuance
Purchase Price by Underwriters:
$999.72 per Trust Preferred Security plus accumulated
distributions, if any, from the date of original issuance
Underwriters’ Compensation:
$10.00 per Trust Preferred Security
Specified Funds for Payment of Purchase Price:
Immediately available funds by wire
Stated Amount of Trust Common Securities:
$10,000
Declaration of Trust:
Amended and Restated Declaration of Trust, to be entered into on
or before the Closing Date, among Regions Financial Corporation,
as Depositor, Deutsche Bank Trust Company Americas, as Property
Trustee, Deutsche Bank Trust Company Delaware, as Delaware
Trustee, Xxxx Xxxxx and Xxxx X. Xxxxxx as Administrative Trustees,
and the registered holders from time to time of the Trust
Preferred Securities and the Trust Common Securities
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Initial Assets of the Trust:
$700,010,000 aggregate principal amount of Regions Financial
Corporation’s 6.625% Junior Subordinated Notes due 2077, to be
issued pursuant to the Indenture referred to in the Underwriting
Agreement to which this Schedule II is attached.
Closing Date:
April 27, 2007; 9:30 A.M. (New York City time)
Closing Location:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices, etc.:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Registration Department
(a) Free Writing Prospectuses Listed Pursuant to Section 5(B)(a)(iii):
Final Term Sheet, dated April 24, 2007, prepared and filed pursuant to Section 5(A)(a).
(b) Additional Documents Incorporated by Reference:
None.
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Schedule III
[Insert Final Term Sheet]
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ANNEX I
Pursuant to Section 6(f) of the Underwriting Agreement, the accountants shall furnish letters
to the Underwriters to the effect that:
(i) They are an independent registered public accounting firm with respect to the
Guarantor and its subsidiaries within the meaning of the Securities Act and the applicable
published rules and regulations thereunder adopted by the Securities and Exchange Commission
(the “SEC”) and the Public Company Accounting Oversight Board (United States) (the “PCAOB”);
(ii) In their opinion, the financial statements and any supplementary financial
information and schedules (and, if applicable, financial forecasts and/or pro forma
financial information) audited or examined by them and included or incorporated by reference
in the Registration Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Securities Act or the Exchange Act, as
applicable, and the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the Guarantor for the
periods specified in such letter, as indicated in their reports thereon, copies of which
have been furnished to the Underwriters;
(iii) They have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of cash flows included in
the Prospectus and/or included in the Guarantor’s Quarterly Report(s) on Form 10-Q covering
periods after the latest full fiscal year and incorporated by reference into the Prospectus
as indicated in their reports thereon, copies of which have been furnished to the
Underwriters; and on the basis of specified procedures including inquiries of officials of
the Guarantor who have responsibility for financial and accounting matters regarding whether
the unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act and the related published rules and
regulations, nothing came to their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act and the Exchange
Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the consolidated
results of operations and financial position of the Guarantor for the five most recent
fiscal years included in the Prospectus and/or included or incorporated by
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reference in Item 6 of the Guarantor’s Annual Report on Form 10-K for the most recent
fiscal year agrees with the corresponding amounts (after restatement where applicable) in
the audited consolidated financial statements for such five fiscal years which were included
or incorporated by reference in the Guarantor’s Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in the Prospectus under selected captions with
the disclosure requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in accordance
with generally accepted auditing standards, consisting of a reading of the unaudited
financial statements and other information referred to below, a reading of the latest
available interim financial statements of the Guarantor and its subsidiaries, inspection of
the minute books of the Guarantor and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus, inquiries of
officials of the Guarantor and its subsidiaries responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included or incorporated by
reference in the Company’s Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the related published
rules and regulations, or (ii) any material modifications should be made to the
unaudited consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included or incorporated by reference in the
Guarantor’s Quarterly Report(s) on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and balance sheet items included
in the Prospectus do not agree with the corresponding items in the unaudited
consolidated financial statements from which such data and items were derived, and
any such unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the Guarantor’s Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial statements
referred to in clause (A) and any unaudited income statement data and
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balance sheet items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in the
Guarantor’s Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of the Securities
Act and the published rules and regulations thereunder or the pro forma adjustments
have not been properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the date of such
letter, there have been any decreases in interest-bearing deposits, non-interest
bearing deposits, total deposits or stockholders’ equity, or in other items
specified by the Representative, or any increases in long-term borrowings, or in
other items specified by the Representative, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial statements included or
incorporated by reference in the Prospectus to the specified date referred to in
clause (E) there were any decreases in net interest income or net income, or other
items specified by the Representative, or any increases in any items specified by
the Representative, in each case as compared with the comparable period of the
preceding year and with any other period of corresponding length specified by the
Representative, except in each case for increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such letter; and
(vii) In addition to the examination or audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs (iii) and (vi) above,
they have carried out certain specified procedures, not constituting an examination or audit
in accordance with generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representative which are derived from
the general accounting records of the Guarantor and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference) or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Representative or in documents
incorporated by reference in the Prospectus specified by the Representative, and have
compared certain of such amounts, percentages and financial information with the accounting
records of the Guarantor and its subsidiaries and have found them to be in agreement.
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